Financing. (a) Prior to the Closing, the Company shall use reasonable best efforts, and shall cause its Subsidiaries to use reasonable best efforts, and shall use reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement).
Appears in 4 contracts
Samples: Amended and Restated Agreement and Plan of Merger (Alaska Communications Systems Group Inc), Amended and Restated Agreement and Plan of Merger (Alaska Communications Systems Group Inc), Agreement and Plan of Merger (Alaska Communications Systems Group Inc)
Financing. (a) Prior to the Closing, the Company each Seller shall use its reasonable best efforts, and shall cause its Subsidiaries efforts to use reasonable best effortsprovide, and shall use reasonable best efforts to cause their its Representatives and the TGE Entities and their Subsidiaries’ respective RepresentativesRepresentatives to provide, assistance with the Debt Financing as is reasonably requested by Acquirors, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arrangingthe arrangement of, syndicatingand the satisfaction on a timely basis of all relevant conditions precedent to, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arrangingFinancing. Such assistance shall include, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), includingbut not be limited to: (i) assisting in reasonable participation in, and assistance with, the preparation of a confidential information memorandum the Marketing Material and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings rating agency presentations and delivering customary representation and authorization letters in connection therewithpresentations; (ii) reasonable participation by senior management of the TGE Entities in a reasonable number of rating agency presentations (including with respect to the Existing Change of Control Notes Consents), meetings with prospective lenders, road shows and drafting sessions, in each case upon reasonable prior notice and at times and locations to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) mutually agreed in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sourcesgood faith; (iii) providing delivering the Financing Information to Acquirors (and such other financial and operational information reasonably requested by the Acquirors or the Financing Sources), provided that Sellers shall not be responsible for the preparation of pro forma or projected financial information, which shall be prepared solely by Acquirors and Sellers shall have no liability with respect to such information prepared by Acquirors) as promptly as reasonably practicable once available; (iv) delivering customary information and assistance reasonably necessary authorization letters authorizing the distribution of Marketing Material to assist Parent prospective investors (including in connection with any Debt Financing of TEP and its counsel with obtaining Subsidiaries pursuant to the customary legal opinions required to be delivered Senior Bridge Facility (as such term is defined in the Debt Commitment Letter) solely in connection with the Debt Financing; purchase, if any, of any Existing Change of Control Notes validly tendered pursuant to a Change of Control Offer, Alternate Offer or other offer to purchase as described in subclauses (ivi) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (ivii) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing DateSection 6.15(b)); (v) furnishing a certificate of a financial officer of Acquirors and the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and Sources promptly, and, in any event event, at least five four Business Days prior to the Closing Date) , with all documentation and other information with in respect of the TGE Entities that any Lender has requested in writing at least nine Business Days prior to the Company Closing Date that is required by regulatory authorities Governmental Authorities under applicable “beneficial ownership,” “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act, and ; (vi) assisting Acquirors in each case, requested connection with the preparation by Acquirors of the Debt Financing Sources Documents (and, in writing at least ten Business Days prior the case of any Debt Financing of TEP and its Subsidiaries pursuant to the Closing Date; Senior Bridge Facility (viias such term is defined in the Debt Commitment Letter) using reasonable best efforts or in connection with an offering of notes in lieu thereof solely in connection with the purchase, if any, of any Existing Change of Control Notes validly tendered pursuant to cooperate with Parent a Change of Control Offer, Alternate Offer or other offer to satisfy the conditions precedent to purchase as described in subclauses (i) and (ii) of Section 6.15(b), executing and delivering the Debt Financing Documents with respect thereto) and the issuance of securities, borrowing of loans and/or granting of a security interest (and perfection thereof) in the Subject Interests, including (x) requesting that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information transfer agent with respect to the Company applicable TGE Entity make any applicable notations in the equity register of the applicable TGE Entity reflecting the pledge of its equity interests that constitute collateral in favor of the Financing Sources or an agent or trustee on their behalf if required and its business as Parent (y) causing the Organizational Documents of the TGE Entities to be amended in a manner to permit or its facilitate the Debt Financing Sources may reasonably request and security interests granted in connection therewith, (vii) requesting customary independent accountants’ comfort letters (including customary “negative assurance” statements) and consents from the auditor(s) of the audited financial statements provided as part of the Financing Information, including issuing any customary representation letters in connection therewith to such auditor(s) in connection with any financial statements included in any offering documents in respect of the Debt Financing and (viii) cooperating as contemplated by Section 6.15. Information provided by Sellers or the TGE Entities in connection with the Debt Financing (shall only be provided to sources or potential sources of financing and rating agencies that in no event shall the Company, its Subsidiaries, and their respective Representatives have agreed to be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and bound by (x) obtain payoff letters, Lien terminations and instruments of discharge the Confidentiality Agreement as if such Person(s) were party thereto or (y) customary confidentiality provisions. Sellers hereby consent to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date use of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents TGE Entities’ logos in connection with the Debt Financing, except for any execution of documents provided that such logos are conditioned upon used solely in a manner that is not intended to or reasonably likely to harm or disparage Sellers, the ClosingTGE Entities, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to Affiliates or their respective business, or the Closing to permit reputation or goodwill thereof. Acquirors acknowledge and agree that the consummation obtaining of the Debt Financing (except for any corporate actions that are conditioned upon shall not constitute a condition to Acquirors obligation to close the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of transactions contemplated by this Agreement).
Appears in 3 contracts
Samples: Purchase Agreement (Tallgrass Holdings, LLC), Purchase Agreement (Tallgrass KC, LLC), Purchase Agreement (Kelso GP VIII, LLC)
Financing. (a) Prior to the Closing, the Company shall use reasonable best effortsCTWS shall, and shall cause the CTWS Subsidiaries and direct its Subsidiaries to and their respective Representatives to, use reasonable best efforts, its and shall use their respective reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all such cooperation as may be reasonably requested by Parent, SJW or its Affiliates in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and arrangement of any financing to be consummated in accordance connection with the terms of Merger and the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing other transactions contemplated by this Agreement (collectively, the “Debt Financing”)) including, including: without limitation, (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) participating in a reasonable number of due diligence sessionsmeetings and presentations with prospective financing sources (including direct contact between senior management of CTWS, drafting sessions on the one hand, and rating agency meetingsactual and potential financing sources, as well as on the other hand), in each case on reasonable advance notice and at times and locations to be mutually agreed, (ii) furnishing SJW with customary financial and other information regarding CTWS and the CTWS Subsidiaries and assisting SJW or its Affiliates in the preparation of pro forma financial statements and financial information (of a reasonable number of meetings type and form required by and in compliance with Debt Financing Sources; Regulation S-X and Regulation S-K promulgated under the Securities Act and related forms) and (iii) providing customary information furnishing SJW and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorizationfinancing sources promptly, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five within 10 Business Days prior to the Closing Date) , with all documentation and other information required with respect to the Company required by regulatory authorities Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT ActAct of 2001, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Dateas amended; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require such cooperation to the Company, its Subsidiaries extent it would (i) unreasonably disrupt the conduct of the business or operations of CTWS or any of their respective Representatives CTWS Subsidiary, (ii) require CTWS or any CTWS Subsidiary to pay any fees, reimburse any expenses or otherwise incur any liability prior to the Effective Time, (iii) require CTWS or any CTWS Subsidiary to take any action that would reasonably be effective prior expected to conflict with or violate applicable Law, or result in any violation or breach of, or default under, the Closing (certificate of incorporation or by-laws or other than as expressly set forth in this Section 6.17) or, in the good faith judgment comparable organizational documents of the Company CTWS or any of its SubsidiariesCTWS Subsidiary, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company (iv) require CTWS or any of its Subsidiaries in light of COVID-19 CTWS Subsidiary to execute or deliver any COVID-19 Measurescertificate, cause document, instrument or agreement, or undertake any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Subobligation, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be is effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement).
Appears in 3 contracts
Samples: Amended and Restated (SJW Group), Amended and Restated (Connecticut Water Service Inc / Ct), Agreement and Plan of Merger (SJW Group)
Financing. (a) Prior to During the ClosingPre-Closing Period, the Company shall use reasonable best efforts, and shall cause its Subsidiaries to use reasonable best effortsprovide, and shall use commercially reasonable best efforts to cause their its representatives, including legal and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expenseaccounting advisors, to provide to Parent all provide, commercially reasonable cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used Purchaser in connection with the marketing Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; Company), including (iii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of meetings, presentations, due diligence sessions, drafting sessions and sessions with rating agency meetingsagencies, as well as a reasonable number of meetings with Debt Financing Sources; (iiiii) providing customary information and assistance access to materials reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; , (iviii) permitting officers assisting with the preparation of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute materials for bank information memoranda and deliver any documentation similar documents required in connection with the Debt Financing (subject to subclause Financing, (iv) at Closing executing and delivering any pledge and security documents, other definitive financing documents, or other certificates or documents as may be reasonably requested by the Purchaser, (v) reasonably facilitating the pledging of collateral on or after the Closing, (vi) furnishing the Purchaser and its Financing sources (the “Financing Sources”) as promptly as practicable with such financial and other pertinent information regarding the Company as may be reasonably requested by the Purchaser, (vii) using commercially reasonable efforts to obtain accountants’ comfort letters, as reasonably requested by the Purchaser, (viii) using commercially reasonable efforts to provide monthly financial statements (excluding footnotes) within thirty (30) days of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification end of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions each month prior to the Closing Date; , (vix) furnishing a certificate taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the establishing collateral arrangements, B) at Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation establish bank and other information with respect to the Company required by regulatory authorities under applicable “know your customer” accounts and anti-money laundering rules blocked account agreements and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request lock box arrangements in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiariesforegoing, and their respective Representatives be (C) at Closing provide insurance certificates and endorsements as required to provide any pro forma financial information or statements), (ix) assisting by prospective lenders involved in the preparation of customary definitive financing documentation and the completion of any schedulesFinancing, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letterstaking all organizational actions, Lien terminations subject to the occurrence of the Closing, reasonably necessary to permit the consummation of the Financing and instruments of discharge to permit the proceeds thereof to be delivered at Closing made available to allow for the payoff, discharge and termination in full on Purchaser immediately following the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing DateClosing; provided, howeverthat, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior anything to the Closing (other than as expressly set forth contrary in this Section 6.17) or6.11(a), in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose approve or execute any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliatesagreements, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment certificates or other fee documents or make take any other payment (other than fees and costs which are reimbursed by Parent action that is binding on, or creates any obligation or liability of, the Company, in accordance with this Section 6.17) or incur any other liability in connection with each case, relating to the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement).
Appears in 3 contracts
Samples: Purchase Agreement (Fortress Investment Group LLC), Purchase Agreement (Walker & Dunlop, Inc.), Purchase Agreement (Walker & Dunlop, Inc.)
Financing. (a) Prior to the Closing, the Company shall use reasonable best effortsshall, and shall cause its Subsidiaries to use reasonable best effortsto, and shall use reasonable best efforts to cause their its and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement of the CompanyRepresentatives to, at Parent’s sole cost and expense, to provide to Parent all and Merger Sub such cooperation reasonably requested by ParentParent that is necessary, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company proper or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request advisable in connection with the Debt Financing (provided that in no event shall such requested cooperation is consistent with applicable Law and does not unreasonably interfere with the Company, operations of the Company and its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), including (ixi) participation in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies and otherwise reasonably cooperating with the marketing efforts of Parent Entities and the Parent Financing Sources for the Debt Financing; (ii) assisting in with the preparation of customary definitive financing documentation materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the Debt Financing; provided that any such memoranda or prospectuses may, at the election of the Parent Entities, contain disclosure and financial statements with respect to the Company or the Surviving Corporation reflecting the Surviving Corporation and/or its Subsidiaries as the obligor; (iii) as promptly as reasonably practical, furnishing Parent and the completion of Parent Financing Sources with financial and other information regarding the Company and its Subsidiaries as may be reasonably requested by Parent to prepare any schedulesoffering memorandum, exhibits or annexes thereto (including a customary perfection certificate) confidential information statement, lender presentation and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that other materials contemplated by the Debt Financing Commitment Letter requires (including (A) financial (including financial projections) and other information regarding the Company and its Subsidiaries required to be paid offprovided to the Parent Financing Sources pursuant to the Debt Financing Commitment and (B) financial information regarding the Company and its Subsidiaries of the type that would be required by Regulation S-X and Regulation S-K promulgated under the Securities Act for a public offering of non-convertible debt securities of HoldCo or, discharged in the Alternative Merger, Parent (including assistance with the preparation of pro forma financial statements), or terminated otherwise necessary to receive from the Company’s independent accountants customary “comfort” (including “negative assurance” comfort) with respect to the financial information of the Company and its Subsidiaries to be included in such offering memorandum and which, with respect to any interim financial statements, shall have been reviewed by the Company’s independent accountants as provided in SAS 100) (all such information in this subsection (iii) of this Section 5.16(a), the “Required Information”); (iv) using reasonable best efforts to obtain customary accountants’ comfort letters (including providing any necessary management representation letters), legal opinions, appraisals, surveys, title insurance, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments and other documentation and items relating to the Debt Financing as reasonably requested by Parent and, if requested by Parent or Merger Sub, to cooperate with and assist Parent or Merger Sub in obtaining such documentation and items; (v) executing and delivering any pledge and security documents and intercreditor agreements, guarantees, indentures, currency or interest hedging arrangements, other definitive financing documents, a certificate of the chief financial officer or other responsible officer of the Company with respect to the solvency of the Company and its Subsidiaries on a consolidated basis to the extent required in connection with the Debt Financing, and other certificates, opinions, documents and back-up therefor as may be reasonably requested by Parent (including using commercially reasonable efforts to obtain consents of accountants for use of their reports in any materials relating to the Debt Financing) and otherwise reasonably facilitating the pledging of collateral, provided that any such documents shall be effective no earlier than the Closing Date; provided, however, that notwithstanding (vi) taking all actions reasonably necessary to (A) permit the foregoing, (i) nothing herein shall require prospective lenders involved in the Debt Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of preparing offering documents and establishing collateral arrangements to the extent customary and reasonable so long as any such actions do not unreasonably interfere with the conduct of the Company’s and its Subsidiaries’ business; (B) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing provided that any such accounts and arrangements shall be effective no earlier than the Closing Date; and (C) ensure that the solicitation and syndication of the Debt Financing benefit from the existing lending and banking relationships of the Company; (vii) entering into one or more credit or other agreements or indentures on terms satisfactory to Parent immediately prior to the Effective Time with respect to direct borrowings or debt incurrences by the Company contemplated by the Debt Financing; provided that any such documents shall be effective no earlier than the Closing Date; (viii) entering into any customary document in connection with the amendment of the Company’s current credit facilities and in connection with a Consent Solicitation and change of control offer to purchase the Notes, in each case as described in the Debt Financing Commitment in existence as of the date hereof; and (ix) consent to the use of the Company’s and its Subsidiaries’ logos to the extent customary in connection with marketing the Debt Financing; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment reputation or goodwill of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement).
Appears in 3 contracts
Samples: Agreement and Plan of Merger (PNK Entertainment, Inc.), Agreement and Plan of Merger (Ameristar Casinos Inc), Agreement and Plan of Merger (Pinnacle Entertainment Inc.)
Financing. (a) Prior to the Closing, the The Company shall use reasonable best effortsshall, and shall cause its Subsidiaries to use reasonable best effortsto, and shall use its commercially reasonable best efforts to cause their its and their its Subsidiaries’ respective officers, directors, employees, agents, and other representatives (collectively, “Representatives”) to, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation that is reasonably requested by ParentParent to assist Parent and the Merger Subs in the arrangement of any third party debt financing (including any debt capital markets financing) for the purpose of funding the payment of the Aggregate Cash Amount and the repayment, redemption, purchase, defeasance or discharge of any outstanding Indebtedness for borrowed money of the Company and its Subsidiaries (including pursuant to a Debt Offer, the Existing Credit Facility Terminations or a CMBS Transaction)), and the payment of fees and expenses incurred in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing therewith (collectively, the “Debt Financing”), including: including but not limited to (i) assisting as promptly as reasonably practicable, furnishing to Parent and the Financing Sources such financial and other information relating to the Company customary or reasonably necessary for the completion of such Financing to the extent reasonably requested by Parent to assist in the preparation of a confidential customary offering or information memorandum and other customary marketing materials documents to be used in connection with for the marketing completion of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith(“Financing Offering Materials”); (ii) upon using commercially reasonable prior notice efforts to cooperate with the marketing efforts of Parent and at times the Financing Sources, including using commercially reasonable efforts to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) participate in a reasonable number of requested meetings with the parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, the Financing and the Company’s senior management and Representatives, presentations, roadshows, due diligence sessions, drafting sessions and sessions with rating agency meetings, as well as a reasonable number of meetings agencies in connection with Debt Financing Sourcesthe Financing; (iii) providing customary information delivering (A) audited consolidated balance sheets and assistance reasonably necessary related audited statements of comprehensive income (loss), stockholders’ equity and cash flows of the Company (the “Audited Annual Financials”) for each of the three most recently ended fiscal years that have ended at least 90 days (or 75 days in the case of any fiscal year ended after December 31, 2013) prior to assist the Closing Date (and the audit reports for such financial statements shall not be subject to any “going concern” qualifications) and (B) unaudited consolidated balance sheets and related unaudited statements of comprehensive income (loss) and cash flows of the Company (the “Quarterly Financials”) for each subsequent interim quarterly period that has ended at least 40 days prior to the Closing Date, in the case of each of clauses (iii)(A) and (iii)(B), meeting the requirements of Regulation S-X under the Exchange Act as would be applicable to an Annual Report on Form 10-K or a Quarterly Report on Form 10-Q, as applicable (it being further agreed that (x) the Company shall deliver to Parent the consolidated financial statements of the Company described in this clause (iii) in respect of any such fiscal period (other than Audited Annual Financials for its 2011 and its counsel with obtaining 2012 fiscal years) no later than the customary legal opinions required to be delivered in connection date upon which the corresponding consolidated financial statements of the Operating Subsidiary for such fiscal period are filed with the Debt FinancingSEC and (y) the Company shall deliver to Parent the Audited Annual Financials for its 2011 and 2012 fiscal years no later than the date upon which it delivers the Audited Annual Financials for its 2013 fiscal year); (iv) permitting officers using commercially reasonable efforts to cause the Company’s independent accountants to provide reasonable assistance to Parent consistent with their customary practice (including to consent to the use of their audit reports on the consolidated financial statements of the Company and its Subsidiaries in any materials relating to the Financing or in connection with any filings made with the SEC or pursuant to the Securities Act or the Exchange Act, and to provide any “comfort letters” necessary and reasonably requested by Parent in connection with any debt capital markets transaction comprising a part of the Financing, in each case, on customary terms and consistent with their customary practice); and (v) to the extent that the Company or any of its Subsidiaries who will are to be officers party to the Financing following the occurrence of the Company or any of its Subsidiaries after Effective Time, (x) using commercially reasonable efforts to obtain customary legal opinions and executing and delivering customary closing certificates and documents at the Closing to execute and deliver any documentation as may be reasonably requested by Parent in connection with the Debt Financing Financing, (subject y) using commercially reasonable efforts to subclause (iv) facilitate the execution and delivery at the Closing of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent definitive documents (including certification of organizational authorizationloan agreements, organizational documents customary guarantee documentation (if applicable) and good standing certificatesother applicable loan documents) of related to the Company and its SubsidiariesFinancing, and taking corporate action to authorize (z) as long as such information is requested by the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event Sources at least five ten (10) Business Days prior to the Closing Date, providing to the Financing Sources, at least five (5) with Business Days prior to the Closing Date, all customary and reasonable documentation and other information required by regulatory authorities with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT ActAct of 2001, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Dateamended; provided, however, that notwithstanding the foregoing, (i) nothing herein in this Section 5.14 shall require such cooperation to the extent it would (A) unreasonably disrupt or interfere with the business or operations of the Company or any of its Subsidiaries or the conduct thereof or (B) require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with the Financing, prior to the occurrence of the Effective Time (except to the extent Parent promptly reimburses (in the case of ordinary course out-of-pocket costs and expenses) or provides the funding (in all other cases) to the Company or such Subsidiary therefor), or incur any liability in connection with the Financing that is effective prior to the occurrence of the Effective Time, or (C) subject to Section 5.15 below, require the Company or any of its Subsidiaries to enter into any instrument or agreement, or agree to any change or modification to any instrument or agreement, that is effective prior to the occurrence of the Effective Time or that would be effective if the Effective Time does not occur. Without limiting the foregoing proviso, Parent agrees, promptly upon request, to reimburse the Company and its Subsidiaries for all of their reasonable out-of-pocket costs, fees and expenses (including fees and disbursements of counsel) in connection with the Financing promptly following the incurrence thereof (limited, in the case of any costs, fees and expenses for preparing the consolidated financial statements of the Company described in clause (iii) of the preceding sentence, to the incremental costs, fees and expenses for preparing such financial statements in excess of the costs, fees and expenses of preparing the corresponding financial statements of the Operating Subsidiary). Parent shall indemnify and hold harmless the Company, the Significant Stockholders, its and their respective Affiliates, and its and their respective Representatives from and against any and all liabilities, obligations, losses, damages, claims, costs, expenses, awards, judgments and penalties of any type actually suffered or incurred by any of them in connection with any action taken, or cooperation provided, by the Company or its Subsidiaries or any of their respective Representatives at the request of Parent pursuant to take any action that would be effective prior to this Section 5.14 and/or the Closing provision of information utilized in connection therewith (other than information provided in writing by the Company or its Subsidiaries specifically for use in connection therewith); in each case, except to the extent that any such obligations, losses, damages, claims, costs, expenses, awards, judgments and penalties, fees, costs or other liabilities are suffered or incurred as expressly set forth a result of the Company’s or its Representatives’ gross negligence, bad faith, willful misconduct or material breach of this Agreement, as applicable. The Company hereby consents to the use of its and its Subsidiaries’ logos in this Section 6.17) orconnection with the Financing, provided such logos are used solely in the good faith judgment of a customary manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries, interfere unreasonably with Subsidiaries or the business reputation or operations of any of the Company, jeopardize the health and safety of any employee goodwill of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) and on such other customary terms and conditions as the Company shall not be required to disclose any information to reasonably impose. Parent and Merger Sub acknowledge and agree that the obtaining of the Financing, or any of its Affiliates or any prospective lender or any alternative financing, is not a condition to the Closing and reaffirm their respective representatives if doing so would result in obligation to consummate the waiver of any legal privilege or work product protection of any transactions contemplated by this Agreement irrespective and independently of the Company or its Affiliates, directors, officers or employees, (iii) neither availability of the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any alternative financing, subject to fulfillment or waiver of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision Article VI. Notwithstanding anything to the contrary provided herein or in the Confidentiality Agreement, Parent shall be not more burdensome permitted to the Company in any share all information subject to such agreements with its potential financing sources, subject to customary confidentiality undertakings by such potential financing sources with respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)thereto.
Appears in 3 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Sysco Corp), Agreement and Plan of Merger (Us Foods, Inc.)
Financing. (a) Prior to the Closing, the Each of Company and Seller shall use its commercially reasonable best efforts, efforts to provide such assistance (and shall cause its Subsidiaries and their respective Representatives to use their respective commercially reasonable best efforts, and shall use reasonable best efforts to cause their provide such assistance) with the Debt Financing (including, without limitation, with respect to timeliness) as is reasonably requested by Acquiror. Such assistance shall include: (i) participation in meetings, drafting sessions and their due diligence (including accounting due diligence sessions) and sessions with rating agencies, prospective lenders and investors; (ii) furnishing Acquiror and its financing sources with financial and other pertinent information regarding Company and its Subsidiaries as may be reasonably requested by Acquiror to consummate the Debt Financing, (iii) assisting Acquiror and its financing sources in the preparation of (A) an offering document for any portion of the Debt Financing and (B) materials for rating agency presentations, (iv) cooperating with the marketing efforts of Acquiror and its financing sources for any portion of the Debt Financing; (v) facilitating the pledging of collateral and perfection of liens security and, with respect to Company and its Subsidiaries’ respective Representatives, the providing of guarantees supporting the Debt Financing; (vi) taking such actions as promptly as practicable (but in any event, prior to the Termination Date) as are reasonably requested by Acquiror to facilitate the satisfaction on a timely basis of all conditions to obtaining the Debt Financing, including without limitation, delivery by Company’s chief financial officer (or other equivalent officer) on the Closing Date of customary solvency certificates with regard to Company and its Subsidiaries; provided that no obligation under any such certificate shall be effective until the Closing; (vii) delivering to Acquiror unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of Company and its Subsidiaries for each subsequent fiscal quarter and month after December 31, 2011 ended, in each case, with appropriate seniority at least 30 days before the Closing Date; and expertise in the good faith judgement of the (viii) causing Company, at Parent’s sole cost and expense, independent auditors to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used cooperate in connection with the marketing Debt Financing. Company and each of its Subsidiaries hereby consents to the Debt Financing reasonable use of all of its logos, names, and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered trademarks in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing such logos, names and trademarks shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters be used solely in a customary form required manner that is not intended or reasonably likely to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company harm or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the disparage Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Companytheir reputation or goodwill. Nothing contained in this Section 7.3(a) or otherwise shall require Seller, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied an issuer or otherwise cause any breach of this Agreement by Parent or Merger Subother obligor with respect to the Debt Financing prior to the Closing Date. All material, cause any director, officer or employee of the non-public information regarding Company or and its Subsidiaries or their respective Affiliates or Representatives pursuant to incur any liability or cause any breach of any Applicable Lawthis Section 7.3(a) shall be kept confidential in accordance with the Confidentiality Agreement, (ii) except for disclosure to potential lenders and investors as required in connection with the Debt Financing subject to customary confidentiality protections; provided that neither Company shall not be required to disclose any information to Parent or nor any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives Subsidiaries shall be required to pay any commitment or other similar fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) expense or incur any other liability in connection with the Debt Financing Financing; and provided, further, that such requested cooperation does not unreasonably interfere with the ongoing operations of Company and its Subsidiaries. In the event that the Closing does not occur, Acquiror shall indemnify and hold harmless Seller, Company, its Subsidiaries and their respective Affiliates from and against any and all Losses suffered or provide or agree to provide any indemnity incurred by them in connection with any Debt Financing or any the arrangement of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon to the Closing, (v) neither the Company nor extent any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit forgoing arise from the consummation bad faith, gross negligence or willful and intentional misconduct of, or material breach of the Debt Financing (except for any corporate actions that are conditioned upon the Closing)this Agreement by, and (vi) no Representative of the Seller, Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In additionSubsidiaries, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)applicable.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Pinafore Holdings B.V.), Stock Purchase Agreement (Gates Global Inc.), Stock Purchase Agreement (Pinafore Holdings B.V.)
Financing. (a) Prior to the Closing, the Company shall use reasonable best efforts, and shall cause its Subsidiaries to use reasonable best efforts, and shall use reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 paragraph 2 of Schedule II to Exhibit C B of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement).
Appears in 3 contracts
Samples: Agreement and Plan of Merger (ATN International, Inc.), Agreement and Plan of Merger (Alaska Communications Systems Group Inc), Agreement and Plan of Merger (Alaska Communications Systems Group Inc)
Financing. (a) Prior to the Closing, the Company shall use reasonable best effortsprovide to Parent and Merger Sub, and shall cause its Subsidiaries to use reasonable best effortssubsidiaries to, and shall use its reasonable best efforts to cause their the respective officers, employees, Representatives and their Subsidiaries’ respective Representativesadvisors, in each caseincluding legal and accounting, with appropriate seniority and expertise in the good faith judgement of the CompanyCompany and its subsidiaries to, at Parent’s sole cost and expense, to provide to Parent and Merger Sub all cooperation requested by Parent that is necessary, proper or advisable in connection with the Financing and the other transactions contemplated by this Agreement, including (i) participation in meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the Financing, (iii) executing and delivering any pledge and security documents, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Parent (including a certificate of the chief financial officer of the Company or any subsidiary with respect to solvency matters and consents of accountants for use of their reports in any materials relating to the Debt Financing), (iv) furnishing Parent and Merger Sub and their Financing sources with financial and other pertinent information regarding the Company as may be reasonably requested by Parent, in connection with arranging, syndicating, consummating including all financial statements and obtaining the Debt Financing under and in accordance with the terms financial data of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating type required by Regulation S-X and obtaining any Alternative Debt Financing (collectively, Regulation S-K under the “Debt Financing”), including: (i) assisting Securities Act and of type and form customarily included in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing private placements under Rule 144A of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreedSecurities Act, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as offerings of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested debt securities contemplated by the Debt Financing Sources Commitments at the time during the Company’s fiscal year such offerings will be made (the “Required Financial Information”), (v) satisfying the conditions set forth in writing at least ten Business Days prior clause (e) of the first sentence of Section 6 of the Principal Commitment Letter, numbered paragraphs 5 and 8 of Exhibit E of the Principal Commitment Letter and clause (e) of the first sentence of Section 7 of the Forward Underwriting Commitment Letter (to the Closing Date; extent the satisfaction of such conditions requires actions by or cooperation of the Company), (viivi) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiariesobtain accountants’ comfort letters, legal opinions, surveys and title insurance as reasonably requested by Parent; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior such cooperation to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, extent it would interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Lawsubsidiaries, (iivii) using its commercially reasonable efforts to provide monthly financial statements (excluding footnotes) within 25 days of the Company shall not be required end of each month prior the Closing Date, (viii) taking all actions necessary to disclose any information to Parent or any of its Affiliates or any (A) permit the prospective lender or any their respective representatives if doing so would result lenders involved in the waiver Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, establishing collateral arrangements and (iiiB) neither the Company nor its Affiliates, directors, officers, employees, agents establish bank and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees accounts and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability blocked account agreements and lock box arrangements in connection with the foregoing, (ix) obtaining any necessary rating agencies’ confirmations or approvals for the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior relating to the ClosingCompany’s existing credit card receivables financing facility, and (ivx) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any taking all corporate actions prior to the Closing necessary to permit the consummation of the Debt Financing (except and to permit the proceeds thereof to be made available to the Company, including, without limitation, by means of a dividend or distribution from Neiman Marcus Funding Corporation, as of the Closing Date. Parent shall, promptly upon request by the Company, reimburse the Company for any corporate actions that are conditioned upon the Closing), all reasonable and (vi) no Representative of documented out-of-pocket costs incurred by the Company or any its subsidiaries in connection with such cooperation. The Company hereby consents to the use of its Subsidiaries shall be required to make any certifications that it does not reasonably and its subsidiaries’ logos in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) connection with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)Financing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Neiman Marcus, Inc.), Agreement and Plan of Merger (Neiman Marcus, Inc.)
Financing. (a) Prior to During the ClosingInterim Period, the Company shall use reasonable best efforts, Oncor Holdings and shall cause its Subsidiaries Oncor each agree to use reasonable best effortsefforts to timely provide, and shall to use reasonable best efforts to cause their Subsidiaries and their Subsidiaries’ respective Representativesofficers and Representatives to timely provide, reasonable cooperation in connection with the arrangement of any debt or equity issuance contemplated by the Merger Agreement or the Plan of Reorganization (each, a “Financing”) (provided that Parent shall use reasonable best efforts to provide Oncor Holdings and Oncor with notice of any information needed by Parent as soon as reasonably practicable), which cooperation shall be limited to the following: (i) participation by appropriate members of senior management of the Oncor Entities, which participation will be limited to providing Oncor financial and operational information in meetings, presentations, road shows, due diligence sessions, and sessions with prospective lenders, investors and rating agencies, in each case, at mutually agreeable times and locations and upon reasonable notice; (ii) providing information in its control to Purchasers that is necessary for Purchasers to prepare materials for rating agencies and rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with appropriate seniority any such Financing, together with procuring customary authorization letters authorizing the distribution of Oncor information to prospective lenders or investors; (iii) furnishing (A) all information and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation data reasonably requested by ParentParent to prepare all pro forma financial statements required to be prepared or are otherwise customary in connection with any Financing registered on Form X-0, Xxxx X-0 or other available Form (as applicable) and (B) all financial statements and financial data of the type and form required to be prepared in accordance with Regulation S-X and Regulation S-K under the Securities Act for offerings of the debt and/or equity securities (as the case may be) contemplated in the respective Financings registered on Form X-0, Xxxx X-0 or other available Form (as applicable) under the Securities Act, including all information required to be incorporated therein, provided, that, if no registration statement is required to be filed for each of the Financings, such financial statements and financial data shall be included to the extent customary to consummate the Financing (subject to exceptions customary for a private Rule 144A offering); (iv) using reasonable best efforts to assist Parent and the lenders and investors for such Financing or their respective Affiliates in obtaining corporate, facilities and securities ratings, as applicable, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with prior to the terms launch of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing Financing; (collectively, the “Debt Financing”), including: (iv) assisting providing information in its control that is necessary for the preparation of a confidential information memorandum customary schedules and other customary marketing materials to be used exhibits in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and its Affiliates and the lenders or investors or their respective Affiliates providing or arranging Financing promptly, in any event at least five Business Days prior to the Closing Date) a timely manner, with all documentation and other information with respect to which any lender or investor providing or arranging the Company required by regulatory authorities Financing has reasonably requested, including under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, Act (which cooperation shall be required notwithstanding the reasonable best efforts standard required of Oncor Holdings and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing DateOncor above); (vii) using reasonable best efforts providing customary management representation letters to the independent accountants and causing Oncor’s independent auditors to cooperate in connection with the Financing (including providing accountants’ comfort letters and consents to use their audit reports from Oncor’s independent auditors to the extent required in connection with such Financing); and (viii) otherwise assisting Parent to satisfy the any express conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information require Oncor information, provided that with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing foregoing clauses (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statementsi)-(viii), (ixA) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company Oncor shall not be required to disclose endorse any information to Parent particular strategy or structure, (B) the Purchasers shall be responsible for any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in projections, (C) such requested cooperation shall not unreasonably interfere with the waiver ongoing operations of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employeesOncor Entity, (iiiD) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives no Oncor Entity shall be required to pay any commitment or other similar fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability or obligation in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing Financing, (E) other than customary authorization letters, no Oncor Entity or any of their respective officers, directors, or employees shall be required to execute or enter into or perform any agreement with respect to the foregoing Financing that is not contingent upon the consummation of the Mergers or that would be effective prior to the ClosingPurchase Closing Date, (ivF) Persons who are on the Company board of directors or the board of managers (or similar governing body) of any Oncor Entity prior to the Purchase Closing Date in their capacity as such shall not be required to pass resolutions or consents to approve or authorize the execution of the Financing, and (G) no Oncor Entity or any of their respective officers, directors, or employees shall be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents solvency certificate in connection with the Debt Financing, except for . Nothing contained in this Section 12 or otherwise shall require any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall Oncor Entity to be required to take any corporate actions prior an issuer or other obligor with respect to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)Financing.
Appears in 2 contracts
Samples: Letter Agreement (Oncor Electric Delivery Co LLC), Letter Agreement (Berkshire Hathaway Energy Co)
Financing. (a) Prior to the Closing, the Company shall use reasonable best effortsshall, and shall cause its Subsidiaries to use reasonable best effortsto, and shall use its reasonable best efforts to cause their the respective officers, employees, consultants and their Subsidiaries’ respective Representativesadvisors, in each caseincluding legal and accounting, with appropriate seniority and expertise in the good faith judgement of the CompanyCompany and its Subsidiaries to, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used Parent in connection with the marketing arrangement of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; Financing, including, without limitation, (iii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses, business projections and similar documents required in connection with the Financing; provided, however, that any private placement memoranda or prospectuses in relation to high yield debt or equity securities need not be issued by the Company or any of its Subsidiaries; provided, further that, any such memoranda or prospectuses shall contain disclosure and financial statements with respect to the Company or the Surviving Corporation reflecting the Surviving Corporation and/or its Subsidiaries as the obligor; (iii) using reasonable best efforts to cause its independent accountants to provide assistance and cooperation to Parent, including but not limited to participating in a reasonable number of drafting sessions and accounting due diligence sessions, drafting sessions providing consent to Parent to use their audit reports relating to the Company and rating agency meetingsproviding any necessary “comfort letters”, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers executing and delivering definitive financing documents, including pledge and security documents or other certificates, legal opinions or documents as may be reasonably requested by Parent (including certificates of the chief financial officer of the Company or any Subsidiary with respect to solvency matters) and otherwise reasonably facilitating the pledging of collateral; provided that no obligation of the Company or any of its Subsidiaries who will under any such agreement, document or pledge shall be officers of effective until the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing DateEffective Time; (v) furnishing a certificate of a financial officer of the Company with respect providing access to solvency matters people and information as set forth in a customary form required to consummate the Debt Financing as of the Closing DateSection 6.4; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate obtain surveys and title insurance reasonably requested by Parent, (vii) as promptly as practicable, use reasonable best efforts to furnish to Parent and its Financing sources with all financial and other pertinent information regarding the Company reasonably requested by Parent including all financial statements and data of the type required by Regulation S-X and Regulation S-K, including audits thereof to satisfy the conditions precedent extent so required (which audits shall be unqualified), and the other accounting rules and regulations of the SEC, that is of the type and form customarily included in private placement memoranda relating to private placements under Rule 144A of the Securities Act at the time during the Company’s fiscal year such offerings will be made (the “Required Financial Information”), (viii) taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Debt Financing that are within to evaluate the control Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of the Company or its Subsidiaries; establishing collateral arrangements and (viiiB) providing such other reasonably available financial establish bank and other information with respect to the Company accounts and its business as Parent or its Debt Financing Sources may reasonably request blocked account agreements and lock box arrangements in connection with the Debt Financing (foregoing; provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion right of any scheduleslender, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment nor obligation of the Company or any of its Subsidiaries, thereunder shall be effective until the Effective Time; (ix) entering into one or more credit or other agreements on terms reasonably satisfactory to Parent in connection with the Financing immediately prior to the Effective Time; provided that, the Company shall not be required to enter into any purchase agreement for any high-yield debt financing; provided further that no obligation of the Company or any of its Subsidiaries under such credit or other agreement shall be effective until the Effective Time; and (x) taking all corporate actions, subject to the occurrence of the Effective Time, reasonably requested by Parent to permit the consummation of the Financing and the direct borrowing or incurrence of all of the proceeds of the Financing, including any high yield debt financing, by the Surviving Corporation immediately following the Effective Time; provided, 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 pay any commitment fee or similar fee or incur any liability with respect to the Financing prior to the Effective Time. Parent shall promptly, upon request by the Company, jeopardize reimburse the health Company for all reasonable and safety documented out-of-pocket costs incurred by the Company or any of its Subsidiaries in connection with such cooperation and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any employee 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 utilized in connection therewith (other than information provided by the Company or its Subsidiaries), except to the extent that such losses, damages, claims, costs or expenses, directly or indirectly, resulted from or arose out of the willful misconduct of the Company or any of its Subsidiaries. The Company hereby consents to the use of its and its Subsidiaries’ logos as may be reasonably necessary in connection with the Financing; provided that such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or any of it Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries in light of COVID-19 and its or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)marks.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Freescale Semiconductor Inc), Agreement and Plan of Merger (Freescale Semiconductor Inc)
Financing. If Parent determines to seek any financing in connection with the Merger or any other transactions contemplated by this Agreement (a) Prior to the Closing“Financing”), the Company shall use reasonable best efforts, and shall cause its Subsidiaries to use reasonable best efforts, and shall use reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement of the Companyshall, at Parent’s sole cost and expense, use reasonable best efforts to provide cooperate with Parent in its efforts to Parent all cooperation consummate the Financing. Such reasonable best efforts shall include, to the extent reasonably requested by Parent and at Parent’s sole cost and expense, in connection with arranging, syndicating, consummating (a) providing direct contact between prospective lenders and obtaining the Debt Financing under officers and in accordance with the terms directors of the Debt Financing Commitment Letter and/or arrangingCompany and its Subsidiaries, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (ib) assisting providing assistance in the preparation of a confidential information memorandum memoranda, preliminary offering memoranda, financial information and other customary marketing materials to be used in connection with obtaining the Financing, (c) cooperation with the marketing efforts of the Debt Financing Parent and ratings agency presentations its financing sources for such financing, including participation in management presentation sessions, “road shows” and delivering customary representation and authorization letters sessions with rating agencies, (d) providing assistance in obtaining any consents of third parties necessary in connection therewith; with the Financing, (iie) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management providing assistance in extinguishing existing indebtedness of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel Subsidiaries and releasing Liens securing such indebtedness, in each case to take effect at the Effective Time, (f) cooperation with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with the Financing, (g) assisting Parent in obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; , (ivh) permitting officers assisting Parent in securing the cooperation of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) independent accountants of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information including with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Actdelivery of accountants’ comfort letters, and in each case, requested by (i) providing the Debt financial information necessary for the satisfaction of the obligations and conditions of the Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be time periods required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Datethereby; provided, however, that notwithstanding the foregoing, (i) nothing herein Company shall require the Company, its Subsidiaries or any of their respective Representatives not be obligated to take any such action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in extent it would unreasonably interfere with the good faith judgment business or operations of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health . The Company and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required given a reasonable opportunity to pay review and comment on any commitment or other fee or make financing documents and any other payment (other than fees and costs which materials that are reimbursed by Parent in accordance with this Section 6.17) or incur to be presented during any other liability meetings conducted in connection with the Debt Financing Financing, and Parent shall give due consideration to all reasonable additions, deletions or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) changes suggested thereto by the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither its Representatives. Neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required required, under the provisions of this Section 5.14 or otherwise in connection with the Financing (x) to take pay any corporate actions commitment or other similar fee prior to the Closing Effective Time that is not advanced or substantially simultaneously reimbursed by Parent or (y) to permit incur any out-of-pocket expense unless such expense is advanced or substantially simultaneously reimbursed by Parent. Nothing contained in this Section 5.14 or otherwise shall require the consummation Company to be an issuer or other obligor with respect to the Financing prior to the Closing. All material, non-public information regarding the Company and its Subsidiaries provided to Parent, Merger Sub or their Representatives pursuant to this Section 5.14 shall be kept confidential by them in accordance with the Confidentiality Agreement except for disclosure to potential lenders as required in connection with the Financing subject to customary confidentiality protections. Parent (and, after the Effective Time, the Surviving Corporation) shall indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives from and against any and all losses suffered or incurred by them in connection with (1) any action taken by them at the request of Parent or any Merger Sub pursuant to this Section 5.14 or in connection with the arrangement of the Debt Financing or any alternative financing that Parent may raise in connection with the Merger and the other transactions contemplated by this Agreement or (except for 2) any corporate actions that are conditioned upon the Closing), and information utilized in connection therewith (vi) no Representative of other than information provided by the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this AgreementSubsidiaries).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Itc Deltacom Inc), Agreement and Plan of Merger (Earthlink Inc)
Financing. (a) Prior to the Closing, the Company Sellers shall use their reasonable best efforts, and shall cause efforts to provide in a timely manner to the Buyer or its Subsidiaries to use reasonable best effortsFinancing Sources, and shall use their reasonable best efforts to cause their senior management and their Subsidiaries’ respective Representativesrepresentatives, in each case, with appropriate seniority including legal and expertise in the good faith judgement of the Company, at Parent’s sole cost and expenseaccounting representatives, to provide to Parent the Buyer, in each case at the Buyer’s sole expense, all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Buyer or its Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used Sources that is necessary in connection with the marketing arrangement of any financing to be obtained by the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters Buyer in connection therewithwith any debt financing that the Buyer may elect to pursue in connection with the transactions contemplated by this Agreement (the “Financing“), including (a) furnishing the Buyer and its Financing Sources as promptly as practicable with financial and other pertinent information regarding the Sellers as may be reasonably requested by the Buyer or its Financing Sources and that is customary for financings similar to the Financing; (iib) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) participating in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (ivc) permitting officers delivery of customary authorization letters, confirmations and undertakings; (d) preparation and delivery as promptly as practicable to the Buyer and its Financing Sources of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute information and deliver any documentation deliverables required in connection with the Debt Financing Financing; (subject to subclause e) requesting that their independent accountants cooperate with the Financing; and (ivf) facilitating the pledging of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent collateral (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that obtaining any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation payoff letters and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request cooperation in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information repayment or statements), (ix) assisting in the preparation requirement of customary definitive financing documentation existing indebtedness and the completion release and termination of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Daterelated Liens); provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior such cooperation to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, extent it would interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company Sellers. The Sellers shall not be required to disclose take any information action that would subject them to Parent actual or potential liability, to bear any of its Affiliates cost or any prospective lender expense (other than reasonable out-of-pocket costs) or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other similar fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt the Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)Date.
Appears in 2 contracts
Samples: Asset Purchase Agreement (KAR Auction Services, Inc.), Asset Purchase Agreement (KAR Auction Services, Inc.)
Financing. (a) Prior to the Closing, the Company shall use reasonable best effortsParent shall, and shall cause each of its Subsidiaries to to, use reasonable best efforts, and shall use its reasonable best efforts to take, or cause their to be taken, all actions and their Subsidiaries’ respective Representativesto do, or cause to be done, all things necessary, proper or advisable to arrange and consummate the Financing on the terms and conditions described in or contemplated by the Commitment Letter (including any “flex” provisions) to the extent required, when taken together with cash or cash equivalents held by the Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures and to pay cash in lieu of fractional shares in accordance with Section 2.2, including using reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) satisfy (or, if determined advisable by the Parent, obtain the waiver of) on or prior to the Closing Date all conditions to funding contained in the Commitment Letter and such definitive agreements for the Financing to be entered into pursuant thereto, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; Parent, (viiiiii) providing such other reasonably available financial negotiate and other information enter into definitive agreements with respect to the Company Financing contemplated by the Commitment Letter on terms and conditions not materially less favorable to Parent, taken as a whole, than those described in the Commitment Letter (including any “flex” provisions contained therein) on or prior to the Closing Date, (iv) enforce its business as Parent rights under the Commitment Letter and (v) in the event that all conditions to funding contained in the Commitment Letter have been satisfied or its Debt waived, cause the applicable Financing Sources may reasonably request in connection with providing the Debt Financing (provided that in no event shall contemplated by the Company, its Subsidiaries, and their respective Representatives be required Commitment Letter to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full fund on the Closing Date the portion of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing contemplated by the Commitment Letter requires required to be paid offrefinance in full all amounts outstanding under the Company Credit Agreement, discharged the Company Receivables Financing Agreement and the Company Indentures and to pay cash in lieu of fractional shares in accordance with Section 2.2 (including by enforcing the Commitment Letter against any breaching Financing Source). In the event any portion of the Financing contemplated by the Commitment Letter becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated in the Commitment Letter for any reason (other than as contemplated by the Commitment Letter, including as a result of entering into any Qualifying Bank Financing (as defined in the Commitment Letter) or terminated issuing any debt securities) and such portion is necessary to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing (A) Parent shall promptly notify the Company in writing and (B) Parent shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to obtain, as promptly as practicable following the occurrence of such event, alternative financing for any such portion from alternative sources (the “Alternative Financing”) in an amount, when taken together with cash or cash equivalents held by the Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, sufficient to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing and which (1) does not involve terms and conditions that, taken as a whole, are materially less beneficial to Parent than those contained in the Commitment Letter, or (2) would not reasonably be expected to prevent, materially impede or materially delay the consummation of the transactions contemplated by this Agreement. To the extent requested by the Company from time to time, Parent shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange the Financing. Without limiting the generality of the foregoing, Parent shall promptly notify the Company in writing (x) if there exists any material breach, material default, repudiation, cancellation or termination by any party to the Commitment Letter (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach, material default, repudiation, cancellation or termination) of which Parent obtains knowledge, (y) of the receipt by Parent or any of its Subsidiaries of any written notice or other written communication from any Financing Source party to the Commitment Letter asserting any actual material breach, material default, repudiation, cancellation or termination by any party to the Commitment Letter or (z) if for any reason Parent or any of its Subsidiaries believes in good faith that there is (or there is reasonably likely to be) a material dispute or disagreement between or among any parties to the Commitment Letter or any definitive document related to the Financing with respect to the obligations to fund the Financing contemplated by the Commitment Letter. None of Parent nor any of its Subsidiaries shall (without the prior written consent of the Company, such consent not to be unreasonably withheld, delayed or conditioned) consent or agree to any amendment, replacement, supplement or modification to, or any waiver of any provision under, the Commitment Letter or the definitive agreements relating to the Financing if such amendment, replacement, supplement, modification or waiver (1) decreases the aggregate amount of the Financing to an amount that would be less than an amount that would be required, when taken together with cash or cash equivalents held by the Parent and the Company on the Closing Date and the other sources of funds available to Parent on the Closing Date, to refinance in full all amounts outstanding under the Company Credit Agreement, the Company Receivables Financing Agreement and the Company Indentures, to pay cash in lieu of fractional shares in accordance with Section 2.2 and to pay the fees and expenses relating to the Merger and the Financing, (2) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the Financing, (3) could reasonably be expected to prevent, materially impede or materially delay the consummation of the transactions contemplated by this Agreement, or (4) materially and adversely impacts the ability of Parent to enforce its rights against the other parties to the Commitment Letter; provided, however, that notwithstanding that, for the foregoingavoidance of doubt, (i) nothing herein shall require Parent may amend, replace, supplement and/or modify the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on of the date of this Agreement).Agreement or increase the amount of commitments under the Commitment Letter. Upon any amendment, supplement or modification of the Commitment Letter, Parent shall provide a copy thereof to the Company (with only fee amounts and other economic terms, and the rates and amounts included in the “flex” provisions, redacted, none of which redacted provisions would adversely affect the
Appears in 2 contracts
Samples: Agreement and Plan of Merger (First Data Corp), Agreement and Plan of Merger (Fiserv Inc)
Financing. (a) Prior to the Closing, the Company Parent shall use reasonable best effortsprovide, and shall cause its Subsidiaries Affiliates to use reasonable best effortsprovide, and shall use its commercially reasonable best efforts to cause their Parent’s and their Subsidiariesits Affiliates’ respective RepresentativesRepresentatives to provide, all reasonable cooperation in each case, connection with appropriate seniority and expertise in the good faith judgement arrangement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation Financing as may be reasonably requested by Parent, Buyer and that is customary in connection with arrangingBuyer’s efforts to obtain the Financing, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: including (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used reasonable cooperation in connection with the marketing of efforts reasonably necessary for the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewithFinancing; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of by senior management of the Company (which participation may be by videoconference) in Transferred Companies in, and assistance with, the preparation of a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of presentations and meetings with Debt Financing Sourcesrating agencies; (iii) providing customary information and assistance reasonably necessary using commercially reasonable efforts to assist Parent deliver to Buyer and its counsel with obtaining Financing Sources the customary legal opinions required to be delivered Financing Information as promptly as practicable after the date hereof; (iv) reasonable participation by senior management of the Transferred Companies in the negotiation of the documents necessary in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing taking such other customary actions of ancillary assistance as are reasonably requested by Buyer or its Financing Sources to facilitate the satisfaction on a certificate timely basis of a financial officer of Buyer’s conditions precedent to obtaining the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing DateFinancing; (vi) furnishing Parent promptly (using its commercially reasonable efforts to cause its independent auditors to, cooperate with the Financing; and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts if the Closing has not occurred by January 1, 2014, engaging an Auditor and causing such Auditor to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control commence preparation of the Company or its Subsidiaries; (viii) providing such other reasonably available financial audited consolidated balance sheets and other information with respect to related statements of income and cash flows of the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow Business for the payoffyear ended December 31, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date2013; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to until the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the no Transferred Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iiiA) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other similar fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17B) or incur any other liability in connection with or obligation related to the Debt Financing, and no obligation of any Transferred Company under any Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would Document shall be effective prior to the consummation of the Closing; and provided, (iv) further, that the Company requested cooperation hereunder shall not be required require Parent, any Seller or any Transferred Company to execute prior take any action that would conflict with Legal Requirements or its Governing Documents, or result in the violation or breach of, or default under, any Contract to which it is a party or the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents necessary in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of . The Transferred Companies will use commercially reasonable efforts to provide to Buyer and its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior Financing Sources such specific supplementary information with respect to the Closing to permit Transferred Companies or the consummation of the Debt Financing Business (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior subject to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions limitations set forth in such analogous provision shall the prior sentence) as may be not more burdensome necessary so that the Financing Information and the Marketing Material (to the Company extent relating to the Transferred Companies) is complete and correct in all material respects and does not and will not contain any respect than those untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the Debt Financing Commitment Letter as in effect on light of the date of this Agreement)circumstances under which such statements are made, not misleading.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Rockwood Holdings, Inc.), Stock Purchase Agreement (Huntsman International LLC)
Financing. (a) Prior to the Closing, the Company Buyers shall use reasonable best efforts, and shall cause its Subsidiaries to use reasonable best efforts, and shall use their reasonable best efforts to (x) maintain in effect the Financing Commitments and to satisfy the conditions to obtaining the Financing set forth therein (including, without limitation, by funding the equity contemplated by the Equity Financing Commitment), (y) enter into definitive financing agreements with respect to the Debt Financing (the "Debt Financing Agreement") so that the Debt Financing Agreement is in effect as soon as reasonably practicable but in any event no later than the Closing Date and (z) consummate the Financing at or prior to Closing. Subject to the satisfaction or waiver of the conditions to Closing in Article V of this Agreement, Buyers agree to use the bridge facility contemplated by the Financing Commitments to cause their the Closing to occur effective as of no later than October 31, 2004. Buyers shall keep IR reasonably informed of the status of the financing process relating thereto. IR shall cause the Sellers and its and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority officers and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, employees to provide to Parent all such cooperation as may be reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation Buyers in connection with the Debt Financing (subject to subclause (iv) and any offering of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions debt securities privately or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsregistered offering, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation "bank books", offering materials and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) similar documents and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability necessary cooperation in connection with the Debt Financing arrangement of any financing to be consummated contemporaneous with or provide at or agree to provide any indemnity after the Closing in connection with any Debt Financing or any respect of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters)transactions contemplated by this Agreement, including any without limitation, participation in good faith in meetings, due diligence sessions, road shows, the preparation of offering memoranda, registration statements or other certificates appropriate disclosure documents and the execution and delivery of underwriting, placement or documents similar agreements, whose effectiveness shall be conditioned on the closing of the transactions contemplated by this Agreement. If necessary in connection with the Debt Financing, except for any execution of documents in the event that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior Closing has not occurred due solely to the failure of one or more of the conditions to Closing in Article V to permit the consummation be satisfied or capable of being satisfied, and the Debt Financing (except for any corporate actions that are conditioned upon shall not have been consummated, by November 9, 2004, IR shall provide to the Closing), and (vi) no Representative Buyers on or prior to such date with an unaudited balance sheet of the Company or any Dresser-Rand Group and the Business as of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In additionSeptember 30, 2004 and the Company shall furnish Parent reasonably promptly related unaudited statements of income and cash flows for the nine-month period ended September 30, 2004 (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement"September Financial Statements").
Appears in 2 contracts
Samples: Equity Purchase Agreement (Ingersoll Rand Co LTD), Equity Purchase Agreement (Dresser-Rand Group Inc.)
Financing. (a) Prior to the Closingdate hereof, Parent has provided the Company with a description of the potential debt financing (the “Debt Financing”) and equity financing (the “Equity Financing” and together with the Debt Financing, the “Financing”) it may incur in order to raise proceeds sufficient to consummate the transactions contemplated by this Agreement. Prior to the earlier of the Closing Date and the Termination Date, the Company shall use reasonable best efforts, and shall cause its Subsidiaries agrees to use reasonable best effortsefforts to provide, and to use reasonable best efforts to cause its Subsidiaries (other than Oncor Entities, subject to Section 6.21) and their respective officers and employees to provide, reasonable cooperation in connection with the arrangement of the Financing; provided that, Parent shall use reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, in each case, provide the Company with appropriate seniority and expertise in notice of any information needed by Parent as soon as reasonably practicable. The Company’s reasonable best efforts contemplated by this Section 6.22 include the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), includingfollowing: (i) assisting in with the preparation of a confidential customary materials for rating agencies and rating agency presentations, offering documents, private placement memoranda, bank information memorandum memoranda, prospectuses and other customary marketing materials to be used similar documents required in connection with the marketing Financing, together with procuring customary authorization letters authorizing the distribution of information to prospective lenders or investors (which customary authorization letters shall be required notwithstanding the reasonable best efforts standard required of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewithCompany above); (ii) upon reasonable prior notice furnishing (x) all information and at times data reasonably requested by Parent to prepare all pro forma financial statements customary in connection with the Financing and (y) all financial statements and financial data of the type and form prepared in accordance with Regulation S-X and Regulation S-K under the Securities Act for offerings of debt or equity securities on a registration statement on Form S-1 or Form S-3 under the Securities Act (which, for the avoidance of doubt, in no event shall require financial information otherwise required by Rule 3-10 and Rule 3-16 of Regulation S-X (provided that information with respect to assets, liabilities, revenue and EBITDA with respect to non-guarantors in the aggregate shall be provided) or “segment reporting” and any Compensation Discussion and Analysis or executive compensation information required by Item 402 of Regulation S-K)) to the extent customary to consummate the Financing, including all information required to be reasonably agreed, participation of representatives of senior management of the Company incorporated therein (which participation may be by videoconference) in subject to exceptions customary for a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sourcesprivate Rule 144A offering); (iii) providing customary information and assistance reasonably necessary to assist furnishing Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company lenders and investors for such Financing or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorizationtheir respective Affiliates promptly, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five no later than three (3) Business Days prior to an Early Financing Date (as defined below) or the Closing Date) , as applicable, with all documentation and other information with respect to which any lender or investor providing or arranging the Company required by regulatory authorities Financing has reasonably requested, including under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and Act in each case, requested by case to the Debt Financing Sources in writing extent such request is made at least ten (10) Business Days prior to the Early Financing Date or the Closing Date, as applicable; (viiiv) providing customary management representation letters to the independent accountants and using reasonable best efforts to cause the Company’s independent auditors to cooperate in connection with the Financing (including providing accountant’s comfort letters and consents to use their audit reports from the Company’s independent auditors to the extent required in connection with such Financing); (v) obtaining customary payoff letters, releases of liens and other instruments of termination or discharge reasonably requested by Parent in connection with the repayment of indebtedness of the Company and its Subsidiaries (other than Oncor Entities) as necessary to consummate the transactions contemplated by this Agreement or the Plan of Reorganization; and (vi) otherwise cooperating with Parent to satisfy the any express conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; Company, provided in each case (viiiA) providing such other reasonably available financial and other information requested cooperation shall not unreasonably interfere with respect to the ongoing operations of the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iiiB) neither the Company nor any of its Affiliates, directors, officers, employees, agents and Representatives Subsidiaries shall be required to pay any commitment or other similar fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability or obligation in connection with the Debt Financing or provide or agree prior to provide any indemnity in connection with any Debt Financing or any the Closing Date, (C) other than customary authorization letters, none of the foregoing Company, its Subsidiaries or their respective officers, directors, or employees shall be required to execute or enter into or perform any agreement with respect to the Financing that is not contingent upon the Closing or that would be effective prior to the ClosingClosing Date nor prepare any pro forma financial statements, (ivD) Persons who are on the board of directors or the board of managers (or similar governing body) of the Company and any of its Subsidiaries prior to the Closing Date in their capacity as such shall not be required to pass resolutions or consents to approve or authorize the execution of the Financing, and (E) none of the Company or its Subsidiaries or their respective officers, directors, or employees shall be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents solvency certificate in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v. Nothing contained in this Section 6.22(a) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) or otherwise shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of require the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any eventSubsidiaries, prior to the Closing) , to be an issuer or other obligor with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome respect to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)Financing.
Appears in 2 contracts
Samples: Assignment and Assumption Agreement (Nextera Energy Inc), Assignment and Assumption Agreement (Energy Future Intermediate Holding CO LLC)
Financing. Purchaser shall arrange the Financing on the terms and conditions described in the Financing Commitment, including (a) Prior negotiating definitive agreements with respect thereto on terms and conditions contained therein and (b) satisfying all conditions applicable to Purchaser in such definitive agreements that are within its control. If all other conditions (including all conditions under the Financing Commitment that are required to be satisfied on the Closing Date) have been satisfied (other than those conditions that by their nature have to be satisfied at the Closing) and Seller and Purchaser are prepared to close, Purchaser agrees that if the Company Financing (other than the bridge facility) is not otherwise available, it will draw down from the bridge facility contemplated by the Financing Commitment an amount not less than the amount needed to pay the Estimated Cash Consideration, and shall use reasonable best effortstake such actions as are reasonably necessary to cause the Closing to occur no later than the Outside Date (as defined in Section 8.1(b) below). Seller agrees to provide, and shall cause JCG LLC, the Company and the Company Subsidiaries and its Subsidiaries to use reasonable best efforts, and shall use reasonable best efforts to cause their and their Subsidiaries’ respective Representativesrepresentatives, attorneys, independent auditors and advisors to provide, all reasonable cooperation in each case, connection with appropriate seniority and expertise in the good faith judgement arrangement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation Financing as may be reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance Purchaser (provided that such requested cooperation does not unreasonably interfere with the terms ongoing operations of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating Company and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”Company Subsidiaries), including: , without limitation, (i) participation in meetings, drafting sessions and due diligence sessions, (ii) furnishing Purchaser and its financing sources and its and their attorneys, independent auditors and advisors with financial and other pertinent information regarding JCG LLC, the Company and the Company Subsidiaries as may be reasonably requested by Purchaser, (iii) assisting Purchaser and its financing sources in the preparation of a confidential information memorandum and other customary marketing (A) offering documents for any debt raised to complete the transactions contemplated hereby, (B) materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and for rating agency meetingspresentations, as well as a reasonable number of meetings with Debt Financing Sources; and (iiiC) providing customary information business projections and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent financial statements (including certification of organizational authorization, organizational documents and good standing certificates) historical financial statements of the Company and its Subsidiariesthe Company Subsidiaries prepared in accordance with GAAP, pro forma financial statements and taking corporate action other financial information required pursuant to authorize the borrowing and guarantees Regulation S-X of the Debt FinancingSecurities Act), provided that (iv) reasonably cooperating with the marketing efforts of Purchaser and its financing sources for any of debt raised by Purchaser to complete the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; transactions contemplated hereby, (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing providing and executing such documents as of the Closing Date; may be reasonably requested by Purchaser, (vi) furnishing Parent promptly (and in any event at least five Business Days prior to reasonably facilitating the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Actpledge of collateral, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent cause legal counsel to satisfy the conditions precedent to the Debt Financing that are within the control provide customary legal opinions and an independent auditor of the Company to provide any unqualified opinions, consents or its Subsidiaries; (viii) providing such other reasonably available financial and other information customary comfort letters with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment statements of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to as may be satisfied or otherwise cause any breach of this Agreement reasonably requested by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company Purchaser; provided that Seller shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other similar fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability Liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement).
Appears in 2 contracts
Samples: Stock Purchase Agreement (Jean Coutu Group (PJC) Inc.), Stock Purchase Agreement (Rite Aid Corp)
Financing. (a) Prior to During the ClosingApproval Period, the Company shall use reasonable best efforts, Oncor Holdings and shall cause its Subsidiaries Oncor each agree to use reasonable best effortsefforts to timely provide, and shall to use reasonable best efforts to cause their Subsidiaries and their Subsidiariesrespective Representatives to timely provide, reasonable cooperation in connection with Parent’s arrangement of any debt or equity issuance contemplated by the Merger Agreement or the Plan of Reorganization (each, a “Financing”) (provided that, Parent shall use reasonable best efforts to provide Oncor Holdings and Oncor with notice of any information needed by Parent as soon as reasonably practicable). Oncor Holdings’ respective Representativesand Oncor’s cooperation shall be limited to the following: (i) participation by appropriate members of senior management of the Oncor Entities, which participation will be limited to providing Oncor financial and operational information in a reasonable number of meetings, presentations, road shows, due diligence sessions, and sessions with prospective lenders, investors and rating agencies, in each case, at mutually agreeable times and locations and upon reasonable notice; (ii) providing information in its control to Purchasers that is necessary for Purchasers to prepare materials for rating agencies and rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with appropriate seniority any such Financing, together with procuring customary authorization letters authorizing the distribution of Oncor information to prospective lenders or investors (which customary authorization letters shall be required notwithstanding the reasonable best efforts standard required of Oncor Holdings and expertise in the good faith judgement of the Company, at Parent’s sole cost Oncor above); (iii) furnishing (A) all information and expense, to provide to Parent all cooperation data reasonably requested by ParentParent to prepare all pro forma financial statements required to be prepared or are otherwise customary in connection with any Financing registered on Form X-0, Xxxx X-0 or other available Form (as applicable) and (B) all financial statements and financial data of the type and form required to be prepared in accordance with Regulation S-X and Regulation S-K under the Securities Act for offerings of the debt and/or equity securities (as the case may be) contemplated in the respective Financings registered on Form X-0, Xxxx X-0 or other available Form (as applicable) under the Securities Act, including all information required to be incorporated therein, provided, that, if no registration statement is required to be filed for each of the Financings, for each such Financing, financial statements and financial data shall be furnished to the extent customary to consummate the Financing (subject to exceptions customary for a private Rule 144A offering) and, for the avoidance of doubt, would not require financial information otherwise required by Rule 3-10 and Rule 3-16 of Regulation S-X or “segment reporting” and any Compensation Discussion and Analysis or executive compensation information required by Item 402 of Regulation S-K; (iv) using reasonable best efforts to assist Parent and the lenders and investors for such Financing or their respective Affiliates in obtaining corporate, facilities and securities ratings, as applicable, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with prior to the terms launch of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing Financing; (collectively, the “Debt Financing”), including: (iv) assisting providing information in its control that is necessary for the preparation of a confidential information memorandum customary schedules and other customary marketing materials to be used exhibits in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and the lenders and investors for such Financing or their respective Affiliates promptly, and in any event at least five no later than three (3) Business Days prior to an Early Financing Date (as defined in the Merger Agreement) or the Purchase Closing Date) , as applicable, with all documentation and other information with respect to which any lender or investor providing or arranging the Company required by regulatory authorities Financing has reasonably requested, including under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by case to the Debt Financing Sources in writing extent such request is made at least ten (10) Business Days prior to the Early Financing Date or the Purchase Closing Date, as applicable; (vii) using reasonable best efforts providing customary management representation letters to the independent accountants and causing Oncor’s independent auditors to cooperate in connection with the Financing (including providing accountants’ comfort letters and consents to use their audit reports from Oncor’s independent auditors to the extent required in connection with such Financing); and (viii) otherwise cooperating with the reasonable requests of Parent to satisfy the any express conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information require Oncor information, provided that with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing foregoing clauses (provided that in i)-(viii), (A) no event Oncor Entity shall the Company, its Subsidiaries, and their respective Representatives be required to provide endorse any pro forma financial information particular strategy or statements)structure, (ixB) assisting in the preparation of customary definitive financing documentation and the completion of Purchasers shall be responsible for any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoingprojections, (iC) nothing herein such requested cooperation shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, not unreasonably interfere unreasonably with the business or ongoing operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable LawOncor Entity, (iiD) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives no Oncor Entity shall be required to pay any commitment or other similar fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability or obligation in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing Financing, (E) other than customary authorization letters, no Oncor Entity or any of their respective officers, directors, or employees shall be required to execute or enter into or perform any agreement with respect to the foregoing Financing that is not contingent upon the consummation of the Merger or that would be effective prior to the ClosingPurchase Closing Date, (ivF) no Persons who are on the Company board of directors or the board of managers (or similar governing body) of any Oncor Entity prior to the Purchase Closing Date in their capacity as such shall not be required to pass resolutions or consents to approve or authorize the execution of the Financing, and (G) no Oncor Entity or any of their respective officers, directors, or employees shall be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents solvency certificate in connection with the Debt Financing, except for . Nothing contained in this Section 12 or otherwise shall require any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall Oncor Entity to be required to take any corporate actions prior an issuer or other obligor with respect to the Closing Financing nor to permit the consummation of the Debt Financing (except assume any liability whatsoever for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)Financing.
Appears in 2 contracts
Samples: Letter Agreement (Oncor Electric Delivery Co LLC), Sempra Energy
Financing. (a) Prior to the ClosingEffective Time, the Company shall use reasonable best effortsshall, and shall cause its Subsidiaries to use reasonable best efforts, and shall use reasonable best efforts to cause their and their Subsidiaries’ respective Representativesofficers, in each casedirectors, employees and agents to, reasonably cooperate with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing financing Parent deems necessary to consummate the transactions contemplated hereby (collectively, the “Debt Financing”), including: including by (i) assisting providing direct contact between prospective lenders and the officers and directors of Company and its Subsidiaries, (ii) providing assistance in the preparation of a confidential information memorandum memoranda, prospectuses and other customary marketing materials materials, if any, to be used in connection with the marketing of Financing, (iii) providing reasonable and customary assistance in the Debt Financing preparation for, and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreedparticipating in, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of meetings, due diligence sessions, drafting sessions road shows and similar presentations, if any, to and with, among others, prospective lenders, investors and rating agency meetingsagencies, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers providing any financial information reasonably necessary for the satisfaction of the Company obligations and conditions set forth in any commitment letters or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute similar agreements and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing undertaking such other reasonably available financial and other information with respect to the Company and its business actions, all as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing DateFinancing; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in 5.16 shall require such cooperation to the good faith judgment of the Company or any of its Subsidiaries, extent it would interfere unreasonably with the business or operations of Company or its Subsidiaries and until the Effective Time occurs, neither Company nor any of its Subsidiaries nor any of their respective Representatives shall (w) be required to execute any binding commitment or other obligation in connection with Parent’s efforts to obtain Financing; (x) be required to pay any commitment fee or other similar fee; (y) be required to incur any other liability with respect to, or cause or permit any Lien to be placed on any of their respective assets in connection with, the Financing; (z) be required to provide any legal opinion or other opinion of counsel prior to the Effective Time in connection with the Financing; provided, further, that any bank information memoranda and offering prospectuses or memoranda required in relation to the Financing shall contain disclosure and financial statements reflecting Parent and/or its Subsidiaries as the obligor. Parent shall promptly, upon request by Company, jeopardize the health reimburse Company for all reasonable and safety of any employee of the documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by Company or any of its Subsidiaries in light connection with the cooperation of COVID-19 or any COVID-19 Measures, Company and its Subsidiaries contemplated by this Section 5.16. Nothing in this Section 5.16 shall require such cooperation to the extent it would (i) cause any condition to Closing set forth in Article VI to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable LawAgreement, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the require Company or any of its Subsidiaries shall to take any action that will conflict with or violate Company’s or any if its Subsidiary’s organizational documents or any Laws or (iii) reasonably be required expected to make result in any certifications that it does not reasonably officer or director of Company or any of its Subsidiaries incurring any personal liability. Parent and Merger Sub acknowledge and agree that, notwithstanding anything in good faith believe this Agreement to be true. In additionthe contrary, the Company shall furnish Parent reasonably promptly (andobligations to perform their respective agreements hereunder, in any event, prior including to consummate the Closing subject to the Closing) with the financial statements identified in paragraphs 6 terms and 7 of Exhibit C conditions hereof, are not conditioned on obtaining of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)Financing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (McKesson Corp), Agreement and Plan of Merger (PSS World Medical Inc)
Financing. (a) Prior to the Closing, the Company shall use reasonable best effortsshall, and shall cause its Subsidiaries to use reasonable best effortsto, and shall use its reasonable best efforts to cause their its and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement of the CompanyRepresentatives to, at Parent’s sole cost and expense, to provide to Parent and Merger Sub all cooperation reasonably requested by ParentParent that is necessary, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used proper or advisable in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; the transactions contemplated by this Agreement, including (iii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies, (ii) assisting with the preparation of materials for rating agency meetingspresentations, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary offering documents, private placement memoranda, bank information memoranda, prospectuses and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions similar documents required to be delivered in connection with the Debt Financing, including execution and delivery of customary representation letters reasonably satisfactory in form and substance to the Company in connection with bank information memoranda; provided, that any private placement memoranda or prospectuses in relation to high yield debt securities need not be issued by the Company or any of its Subsidiaries; provided further, that any such memoranda or prospectuses shall contain disclosure and financial statements with respect to the Company or the Surviving Corporation reflecting the Surviving Corporation and/or its Subsidiaries as the obligor, (iii) as promptly as reasonably practical, furnishing Parent and its Debt Financing sources with financial and other information regarding the Company and its Subsidiaries as may be reasonably requested by Parent, including all financial statements, pro forma financial information, financial data, audit reports and other information of the type required by Regulation S-X and Regulation 49 S-K under the Securities Act and of type and form customarily included in a private placement memorandum relating to private placements under Rule 144A of the Securities Act at the time during the Company’s fiscal year such offerings will be made (the “Required Information”), (iv) permitting officers using reasonable best efforts to obtain accountants’ comfort letters, legal opinions, appraisals, surveys, engineering reports, title insurance and other documentation and items relating to the Debt Financing as reasonably requested by Parent and, if requested by Parent or Merger Sub, to reasonably cooperate with and assist Parent or Merger Sub in obtaining such documentation and items, (v) using commercially reasonable efforts 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 Chief Financial Officer of the Company with respect to solvency matters) and otherwise reasonably facilitating the pledging of collateral (including cooperation in connection with the pay off of existing indebtedness and the release of related Liens, if any), provided, that no obligation of the Company or any of its Subsidiaries who will under such executed documents shall be officers effective until the Effective Time, (vi) taking all actions necessary to (A) permit the prospective Debt Financing and equity sources to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements and (B) establish bank and other accounts in connection with the foregoing and (viii) using reasonable best efforts to obtain waivers, consents, estoppels and approvals from other parties to material leases, encumbrances and contracts to which any of the Subsidiaries of the Company is a party and to arrange discussions among Parent, Merger Sub and their financing sources with other parties to material leases, encumbrances and contracts; it being understood that the Company shall have satisfied each of its obligations set forth in clauses (i) through (viii) of this sentence if the Company shall have used its reasonable best efforts to comply with such obligations whether or not any applicable deliverables are actually obtained or provided. The Company hereby consents to the use of its and its Subsidiaries’ logos as may be reasonably necessary in connection with the Debt Financing; provided, that such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing or their marks. Nothing in this Section 5.11(a) shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or any of its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required Subsidiaries to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior assistance to the Closing (other than as expressly set forth in this Section 6.17) or, in extent it would interfere unreasonably with the good faith judgment ongoing business or operations of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any . As of the Companydate of this Agreement, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition believes that it will be able to Closing to fail satisfy on a timely basis the terms and conditions to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result it in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.175.11(a). Notwithstanding anything in this Section 5.11(a) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closingcontrary, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take pay any corporate actions commitment fee or similar fee or incur any liability with respect to the Debt Financing prior to the Closing Effective Time. Upon the valid termination of this Agreement (other than in accordance with Section 7.1(f)), Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs incurred by the Company or any of its Subsidiaries, officers, employees, representatives and advisors in connection with their respective obligations pursuant to permit this Section 5.11(a). Parent and Merger Sub hereby agree and acknowledge that the Debt Financing does not constitute a condition to the consummation of the transactions contemplated by this Agreement. Parent and Merger Sub shall, on a joint and several basis indemnify and hold harmless the Company and its Subsidiaries, directors, officers, employees, representatives and advisors from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with any action taken by 50 them at the request of Parent or Merger Sub pursuant to this Section 5.11(a) or in connection with the arrangement of the Debt Financing (and any information utilized in connection therewith, except for any corporate actions to the extent that are conditioned upon such losses, damages, claims, costs or expenses, directly or indirectly, resulted from or arose out of the Closing), and (vi) no Representative gross negligence or willful misconduct of the Company or any of its Subsidiaries Subsidiaries. Nothing contained in this Section 5.11(a) or otherwise shall be required to make any certifications that it does not reasonably in good faith believe require the Company to be true. In addition, an issuer or other obligor with respect to the Company shall furnish Parent reasonably promptly (and, in any event, Debt Financing prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Lear Corp), Agreement and Plan of Merger (Lear Corp)
Financing. If Parent determines to seek financing (athrough loans from financial institutions and/or the issuance or sale of equity or debt securities, or otherwise) Prior to in connection with the Closingtransactions contemplated by this Agreement (each, a “Parent Financing”), the Company shall use reasonable best effortsprovide, and shall cause each of its Subsidiaries to use reasonable best efforts, and shall use reasonable best efforts to cause each of their and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, Representatives to provide to Parent and Merger Subsidiary, all commercially reasonable cooperation reasonably as may be requested by Parent, Parent or its Representatives in connection with arrangingany Parent Financing (provided, syndicating, consummating and obtaining the Debt Financing under and in accordance that such requested cooperation does not unreasonably interfere with the terms ongoing operations of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating Company and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”its Subsidiaries), including: including (i) participation in meetings, presentations, due diligence sessions, road shows, sessions with rating agencies and other meetings, including arranging for reasonable direct contact between senior management, representatives and advisors of the Company or its Subsidiaries with Representatives of Parent and Parent Financing sources, (ii) assisting in the preparation of a confidential offering memoranda, private placement memoranda, bank information memorandum memoranda, prospectuses, rating agency presentations and other customary marketing materials to be used similar documents reasonably requested by Parent or its Representatives in connection with any Parent Financing (including using reasonable best efforts to obtain consents of accountants for use of their reports in any materials relating to any Parent Financing and delivery of one or more customary representation letters), (iii) as promptly as practicable, furnishing Parent and Parent Financing sources with financial and other pertinent information regarding the marketing Company and its Subsidiaries as may be reasonably requested by Parent or any Parent Financing sources (the “Required Information”) and using reasonable best efforts to cause the Company’s independent accountants to provide assistance and cooperation in connection therewith to Parent and any Parent Financing sources, (iv) reasonably cooperating with advisors, consultants and accountants of Parent or any Parent Financing sources with respect to the conduct of any examination, appraisal or review of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation financial condition or any of representatives of senior management the assets or liabilities of the Company or any of its Subsidiaries, including for the purpose of establishing collateral eligibility and values, (which participation may be v) to the extent not prohibited by videoconferenceApplicable Law or the Company’s contractual obligations to Third Parties, (A) in a reasonable number facilitating the granting of due diligence sessionssecurity or pledging of collateral and (B) executing and delivering any pledge and security documents, drafting sessions commitment letters, certificates and rating agency meetingsother definitive financing documents (the “Definitive Debt Documents”), as well as a reasonable number provided that any collateral pledged or security granted by the Company or any of meetings with Debt Financing Sources; (iii) providing customary information its Subsidiaries under, and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers any obligations of the Company or any of its Subsidiaries who will under, any Definitive Debt Documents to which it is a party shall be officers contingent upon the occurrence of the Company Effective Time, (vi) taking all commercially reasonable actions necessary to (A) permit Parent Financing sources to evaluate the Company’s or any of its Subsidiaries after Closing Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements, provided that the information provided in connection therewith to execute such prospective lenders shall be subject to the terms of the Confidentiality Agreement, and deliver any documentation (B) establish bank and other accounts, blocked account agreements and lock box arrangements in connection with the Debt Financing foregoing, (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (vvii) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Parent, Merger Subsidiary and their Representatives, as well as any prospective Parent Financing as of the Closing Date; (vi) furnishing Parent sources, promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information required with respect to the Company required by regulatory authorities any Parent Financing under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation provided that the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior information provided to such prospective lenders shall be subject to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control terms of the Company or its Subsidiaries; Confidentiality Agreement, (viii) providing using commercially reasonable efforts to obtain any necessary rating agencies’ confirmation or approval of any Parent Financing, (ix) using commercially reasonable efforts to obtain consents from Third Parties and accountants’ comfort letters from the Company’s and its Subsidiaries’ accounting firm contemplated by any Parent Financing and assisting Parent and its counsel with information required for customary legal opinions required to be delivered in connection therewith and (x) taking all commercially reasonable actions necessary to permit the consummation of any Parent Financing, including the execution and delivery of any other certificates, instruments or documents reasonably requested by Parent and to permit the proceeds thereof to be made available at Closing to consummate the transactions contemplated by this Agreement. Notwithstanding anything in this Agreement to the contrary, nothing shall require the Company to deliver or cause the delivery of (A) any certificate as to the solvency or any other certificate for the Parent Financing, (B) any financial information in a form not customarily prepared by the Company with respect to such other reasonably available period, or (C) any financial and other information with respect to a month or fiscal period that has not yet ended or has ended less than 45 days prior to the Company and its business as Parent date of such request (or its Debt Financing Sources may reasonably request 90 days in connection with the Debt Financing (provided that in case of a fiscal year-end). In no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or Affiliates be required to bear any COVID-19 Measurescost or expense, cause pay any condition to Closing to fail to be satisfied fee or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay make any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability agreement effective in connection with the Debt Parent Financing (including entry into any agreement) that is not contingent upon the Closing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Effective Time. The Company shall not be required to execute prior hereby consents to the Closing any definitive financing documents (other than customary representation use of its and authorization letters), including any other certificates or documents its Subsidiaries’ logos in connection with the Debt any Parent Financing, except for any execution of documents ; provided that such logos are conditioned upon the Closing, (v) neither used solely in a manner that is not reasonably likely to harm or disparage the Company nor of any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)Subsidiaries.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Ingram Micro Inc)
Financing. (a) Prior As promptly as practicable following the Execution Date, the Buyer will prepare and submit to the ClosingSEC a Registration Statement on Form F-1 for the sale of additional ordinary shares (the “Equity Financing”). The Registration Statement for the Equity Financing shall comply in all material respects with the requirements of the Securities Act. The Buyer shall use commercially reasonable efforts to have the Registration Statement cleared by the SEC as promptly as practicable after the filing thereof. The Buyer shall respond as promptly as practicable to any comments made by the SEC with respect to the Registration Statement. The Buyer shall notify the Company as promptly as practicable of any request by the SEC or its staff for an amendment or revisions to the Registration Statement, or comments thereon and responses thereto, or requests by the SEC for additional information in connection therewith, and shall provide to the Company copies of any written comments received from the SEC or its staff. The Company shall use its commercially reasonable efforts to cooperate with the Buyer in the preparation of the Registration Statement or any amendment or supplement thereto and shall furnish the Company, promptly upon the Company’s request, all information relating to the Company reasonably requested by the Buyer for inclusion in, or otherwise in respect of, the Registration Statement. The Company hereby consents to the use of its and its Subsidiary’s names, logos and trademarks solely in connection with the Equity Financing. The Buyer shall provide the Company and their counsel a reasonable opportunity to review and comment on the Buyer’s proposed responses to any comments to the Registration Statement from the SEC that related to the Company prior to the Buyer responding to any such comments and shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. At all times prior to the effectiveness of the Registration Statement, the Company shall use reasonable best efforts, and shall cause its Subsidiaries promptly notify the Buyer if any information relating to use reasonable best efforts, and shall use reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would Affiliates, officers or directors, should be effective prior to the Closing (other than as expressly set forth in this Section 6.17) oran amendment or supplement to the Registration Statement so that such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measuresthe circumstances under which they were made, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)misleading.
Appears in 2 contracts
Samples: Share Exchange Agreement (GAN LTD), Share Exchange Agreement (GAN LTD)
Financing. (a) Prior to the Closing, the The Company shall use reasonable best effortsshall, and shall cause its the Company Subsidiaries to use reasonable best effortsto, and shall use its reasonable best commercial efforts to cause their its and their the Company Subsidiaries’ respective RepresentativesRepresentatives to, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent and Purchaser all cooperation reasonably requested by Parent, Parent that is commercially necessary in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms any new debt financing or refinancing of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers outstanding indebtedness of the Company or any Company Subsidiary, which cooperation shall include cooperating with (i) Parent’s Representatives preparation of its Subsidiaries who will be officers of bank books, materials for presentations, private placement memoranda, business projections or other appropriate disclosure documents, (ii) participation in due diligence sessions, including with Parent’s financial advisers and agents, and in “roadshow” and other meetings with the Company’s and the Company or any of Subsidiaries’ lenders, (iii) causing its Subsidiaries after Closing independent accountants to execute provide reasonable assistance and deliver any documentation in connection with the Debt Financing (subject cooperation to subclause Parent, (iv) the delivery of the proviso below) including any customary closing officer’s certificates audited and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents unaudited historical and good standing certificates) interim financial statements and data of the Company and its the Company Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate assisting in the negotiation of, and executing and delivering, definitive financing documents, including pledge and security documents, and certificates, legal opinions, management representation letters or other documents, to the extent reasonably requested by Parent facilitating the pledging of a financial officer collateral, (vi) providing access to the books and records, officers, directors, agents and representatives of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsSubsidiaries, including without limitation the PATRIOT Actfor Parent’s legal and financial advisers and agents, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with assisting Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; in obtaining surveys and title insurance reasonably requested by Parent, (viii) providing taking all actions necessary or desirable to permit or facilitate consummation of any such other reasonably available financial financing or refinancing, including, without limitation, the payment of any customary fees and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request expenses in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements)such refinancing, (ix) assisting Parent in the preparation of customary definitive financing documentation and the completion obtaining any consents of any schedules, exhibits third parties necessary or annexes thereto (including a customary perfection certificate) desirable to permit or facilitate consummation of any such financing or refinancing and (x) obtain payoff letterstaking such other actions related to such financing or refinancing as are reasonably required by Parent; provided, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires Company and Company Subsidiaries and their Representatives shall not be obligated to be paid off, discharged (A) take any action that interferes with Company operations or terminated (B) consummate any financing or refinancing that is on terms that are not reasonably acceptable to the Closing DateCompany; provided, however, (1) with respect to up to $100,000,000 aggregate principal amount of any existing loans (other than the Company’s Wachovia line of credit), any refinancing of such existing loans will be acceptable provided that notwithstanding the foregoingfinal maturity date is at least five years from the date of the new loan, the interest rate does not exceed by more than 2% per annum the interest rate on the existing loan and the proceeds of the refinancing to the Company from the new loan exceeds the current principal balance of the existing loan, (2) with respect to any unsecured real property, any financing will be acceptable provided that (i) nothing herein shall require the interest rate does not exceed 7.5%, the term is at least three years and the loan proceeds equal not less than 50% of the property’s appraised value and (3) with respect to the Company’s Wachovia line of credit, its Subsidiaries it shall be acceptable to (i) extend, modify or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of refinance the Company, jeopardize the health and safety ’s Wachovia line of any employee of the Company credit or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose separately finance any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any all of the Company or its Affiliates, directors, officers or employees, properties presently securing such line of credit provided that (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (ivx) the Company shall financing of such properties does not be required to execute prior to cause a default under the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution Wachovia line of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing)credit, and (viy) no Representative the terms of such separate financings provide that the Company or any of its Subsidiaries shall be required to make any certifications that it interest rate does not reasonably in good faith believe to be true. In additionexceed 7.5%, the Company shall furnish Parent reasonably promptly (and, in any event, prior term is at least three years and the loan proceeds equal not less than 60% loan to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)appraised value.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (American Land Lease Inc), Agreement and Plan of Merger (GCP Sunshine Acquisition, Inc. A Delaware Corp)
Financing. (a) Prior to the ClosingEffective Time, the Company shall use reasonable best effortsprovide, and shall cause its Subsidiaries to use reasonable best effortsto, and shall use its reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, including legal and accounting, to, provide all cooperation reasonably requested in writing by Parent with reasonable notice in connection with the Financing, including, without limitation (i) participation in meetings, presentations, due diligence sessions, drafting sessions, road shows and sessions with rating agencies, (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses, business projections and financial statements (including those required by the SEC) and similar documents required in connection with the Financing, (iii) executing and delivering any pledge and security documents or other similar documents, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Parent (including a certificate of the chief financial officer of the Company or any Subsidiary with respect to solvency matters and consents of accountants for use of their reports in any materials relating to the Debt Financing) and otherwise reasonably facilitating the pledging of collateral, in each casecase so long as not effective until on or after the Effective Time, (iv) furnishing Parent and its Financing sources with appropriate seniority readily-available historical financial and expertise in other pertinent information regarding the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation Company as may be reasonably requested by Parent, including all historical financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act and of the type and form customarily included in connection with arrangingprivate placements under Rule 144A of the Securities Act, syndicating, consummating and obtaining to consummate the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining or any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used financing transaction executed in connection with the marketing transactions contemplated hereby (the “Required Financial Information”), (v) using commercially reasonable efforts to obtain accountants’ comfort letters, legal opinions, surveys and title insurance as may be requested by Parent or the lenders under the Debt Financing Commitments, (vi) using commercially reasonable efforts to provide monthly financial statements (excluding footnotes) within 25 days of the end of each month prior to the Closing Date, if and in the form now currently prepared by the Company, (vii) taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (B) so long as not effective until on or after the Effective Time, establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, and (viii) taking all corporate actions reasonably necessary to permit the consummation of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to permit the proceeds thereof to be reasonably agreed, participation of representatives of senior management of made available to the Company (which participation may it being understood that to the greatest extent practicable, the actions contemplated by this Section 7.9(a)(viii) shall not be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions taken until immediately prior to the Closing DateClosing); (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth contained in this Section 6.17) or, in 7.9 shall require such cooperation to the good faith judgment of the Company or any of its Subsidiaries, extent that it would interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Subsidiaries. The Company shall not be required to disclose any information to Parent or any of cause its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employeesin their capacities as officers, agents and Representatives shall be to deliver such customary management representation letters as any audit firm may request in connection with any comfort letters or similar documents required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior Financing. The Company hereby consents to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation use of its and authorization letters), including any other certificates or documents its Subsidiaries’ logos in connection with the Debt Financing, except for any execution provided that such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or the reputation or goodwill of documents that are conditioned upon the Closing, (v) neither Company and its marks. Neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required required, under the provisions of this Section 7.9 or otherwise in connection with the Debt Financing (x) to take pay any corporate actions commitment or other similar fee prior to the Closing Effective Time that is not advanced or substantially simultaneously reimbursed by Parent or (y) to permit incur any out-of-pocket expense unless such expense is advanced or substantially simultaneously reimbursed by Parent. Parent shall indemnify and hold harmless the consummation Company, its Subsidiaries and their respective Representatives from and against any and all losses suffered or incurred by them in connection with (1) any action taken by them at the request of Parent or Merger Sub pursuant to this Section 7.9 or in connection with the arrangement of the Debt Financing or (except for 2) any corporate actions that are conditioned upon the Closing), and information utilized in connection therewith (vi) no Representative of other than information provided by the Company or any of its Subsidiaries Subsidiaries). Nothing contained in this Section 7.9 or otherwise shall be required to make any certifications that it does not reasonably in good faith believe require the Company to be true. In addition, an issuer or other obligor with respect to the Company shall furnish Parent reasonably promptly (and, in any event, Debt Financing prior to the Closing. All material, non-public information regarding the Company and its Subsidiaries provided to Parent, Merger Sub or their Representatives pursuant to this Section 7.9(a) shall be kept confidential by them in accordance with the financial statements identified Confidentiality Agreements except for disclosure to potential investors as required in paragraphs 6 and 7 of Exhibit C of connection with the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome subject to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)customary confidentiality protections.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Station Casinos Inc), Agreement and Plan of Merger (Station Casinos Inc)
Financing. (a) Prior to the Closing, the Company Parent and Merger Subsidiary shall use reasonable best efforts, and shall cause its Subsidiaries to use reasonable best efforts, and shall use their reasonable best efforts to cause their obtain the proceeds of the Financing on the terms and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise conditions described in the good faith judgement Commitment Letter, including using reasonable best efforts to (i) negotiate definitive agreements with respect to the Financing consistent with the terms and conditions contained therein, and (ii) satisfy on a timely basis all conditions in such definitive agreements the satisfaction of which are within the control of Parent or Merger Subsidiary. Parent and Merger Subsidiary shall use their reasonable best efforts to comply with their respective obligations, and enforce their respective rights, under the Commitment Letter. Parent shall give the Company prompt notice of any material breach by any party to the Commitment Letter of which Parent has become aware or any termination of the CompanyCommitment Letter. Parent shall not permit any amendment or modification to, at Parent’s sole cost or any waiver of any material provision or remedy under, the Commitment Letter if such amendment, modification or waiver materially increases the conditionality or materially delays the Financing. The Company shall assist and expense, to provide to cooperate with Parent all cooperation reasonably requested by Parent, and Merger Subsidiary in connection with arrangingtheir efforts to obtain the proceeds of the Financing, syndicatingincluding providing, consummating and obtaining the Debt Financing under and in accordance with the terms of Section 8.05, reasonably required information relating to the Debt Company and its Subsidiaries to the financial institution or institutions providing the Financing Commitment Letter and/or arrangingand executing and delivering, syndicatingand causing such Subsidiaries to execute and deliver, consummating customary certificates, legal opinions (which may be reasoned, if counsel reasonably believes it cannot give the opinion otherwise) or other documents and obtaining any Alternative Debt Financing (collectivelyinstruments relating to guarantees, the “Debt Financing”), including: (i) assisting in the preparation pledge of a confidential information memorandum collateral and other customary marketing materials matters ancillary to the Financing as may be used reasonably requested by Parent in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers provided that, no obligation of the Company or any of its Subsidiaries who will be officers of the Company under any such certificate, document or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing instrument shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to until the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health Effective Time and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative none of the Company or any of its Subsidiaries shall be required to make pay any certifications that it does not reasonably commitment or other similar fee or incur any other liability or unreimbursed out-of-pocket expense in good faith believe to be true. In addition, connection with the Company shall furnish Parent reasonably promptly (and, in any event, Financing prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)Effective Time.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Telewest Global Inc), Agreement and Plan of Merger (NTL Inc)
Financing. (a) Prior to the Closing, the Company shall use reasonable best effortsshall, and shall cause its Subsidiaries to use reasonable best effortsto, and shall use reasonable best efforts to cause their its and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, Representatives to provide to the Parent all Entities such cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other Parent that is reasonable or customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall such requested cooperation is consistent with applicable Law and does not materially interfere with the Company, operations of the Company and its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), including (ixi) assisting participation in meetings, presentations, road shows, due diligence sessions and sessions with rating agencies as reasonably requested by Parent and otherwise reasonably cooperating with the marketing efforts of Parent Entities and the Parent Financing Sources for the Debt Financing; (ii) providing all reasonably requested assistance with the preparation of customary definitive financing documentation materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be similar documents required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing; provided that any such memoranda or prospectuses may, except at the election of the Parent Entities, contain disclosure and financial statements with respect to the Company or the Final Surviving Entity reflecting the Final Surviving Entity and/or its Subsidiaries as the obligor; (iii) promptly furnishing Parent and the Parent Financing Sources with customary financial and other information regarding the Company and its Subsidiaries including non-public and pro forma financial information and projections as may be reasonably requested by Parent for Parent Financing Source diligence or to prepare any execution offering memorandum, confidential information statement, lender presentation and other materials contemplated by the Debt Financing Commitment; (iv) using reasonable best efforts to obtain customary accountants’ comfort letters (including providing any necessary management representation letters), legal opinions, appraisals, surveys, title insurance, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments and other documentation and items relating to the Debt Financing as reasonably requested by Parent and, if requested by any of documents that are conditioned upon the ClosingParent Entities, to cooperate with and assist such Parent Entity in obtaining such documentation and items; (v) neither reasonable or customary participation by appropriate senior management of the Company nor any in the negotiation and preparation of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior the documentation relating to the Closing to permit the consummation of the Debt Financing (except for Financing, provided that any corporate actions that are conditioned upon the Closing), such documents executed and (vi) no Representative of delivered by the Company or any of its Subsidiaries shall be required to make any certifications that it does subject (or not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior delivered prior) to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C occurrence of the Debt Financing Commitment Letter Effective Time; (or vi) using reasonable best efforts to take such actions that are reasonably necessary to (A) permit the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained prospective lenders involved in the Debt Financing Commitment Letter as to perform customary due diligence of the Company and its Subsidiaries and (B) establish bank and other accounts and blocked account agreements and lock box arrangements in effect on connection with the date foregoing provided that any such accounts and arrangements shall be effective no earlier than the Closing Date; (vii) provide customary payoff letters and Lien releases (subject, in each case, to receipt of this Agreementfunds from Parent sufficient to make such repayments); and (viii) consent to the use of the Company’s and its Subsidiaries’ logos to the extent customary in connection with marketing the Debt Financing; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Isle of Capri Casinos Inc), Agreement and Plan of Merger (Eldorado Resorts, Inc.)
Financing. (a) Prior to the Closing, the The Company shall use reasonable best efforts, and shall cause its Subsidiaries to use reasonable best effortsagrees to, and shall use its reasonable best efforts to cause their its Subsidiaries and its and their Subsidiaries’ respective RepresentativesRepresentatives to, use their respective reasonable best efforts to provide, at Parent’s expense, such assistance with the Financing as is reasonably requested by Parent. Such assistance shall include the following: (i) participation by senior management of the Company and its Subsidiaries in, and commercially reasonable assistance with, the preparation of rating agency presentations and lender and underwriter presentations, prospectuses, and meetings with prospective lenders, underwriters, and rating agencies, including participation by senior management in underwriter due diligence sessions; (ii) timely delivery to Parent and its financing sources and similar persons of financial statements and other information regarding the Company and its Subsidiaries reasonably requested by Parent (including unaudited quarterly and audited year-end consolidated financial statements, and French translations thereof, of each of the Company and its Subsidiaries as, when and to the extent prepared, in each case, with appropriate seniority and expertise to the extent required under applicable securities Laws to be included in any prospectus or prospectus supplement for the good faith judgement Financing (which shall not include in any event any separate financial statements of any of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”Subsidiaries), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith); (iiiii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of by appropriate senior management of the Company (which participation may in the negotiation of the documentation evidencing the Financing; provided, however, that the effectiveness of any definitive documentation executed by the Company or its Subsidiaries shall be subject to the consummation of the transactions contemplated by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financingthis Agreement; (iv) permitting officers using commercially reasonable efforts to take such actions as are reasonably requested by Parent or the financing sources to facilitate the satisfaction on a timely basis of any conditions precedent to obtaining the Financing relating to the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with including providing all documentation and or other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT USA Patriot Act, and providing reasonable access to Ultimate Parent, Parent, their respective Affiliates and their respective financing sources, including access to data rooms and websites, for purposes of completing any customary diligence requests (subject to entry by the financing sources into customary confidentiality undertakings); (v) taking all actions as may be reasonably requested by Parent in connection with the repayment of any existing Indebtedness of the Company or any of its Subsidiaries to be paid off or otherwise settled, in Parent’s discretion, in connection with the transactions contemplated in this Agreement, including using commercially reasonable efforts to provide customary payoff letters and Lien releases (subject, in each case, requested by to receipt of funds from Parent sufficient to make any such repayment); (vi) using its commercially reasonable efforts to cause its independent auditors to cooperate with the Debt Financing Sources (including participation in writing at least ten Business Days prior underwriter due diligence sessions and the preparation and timely delivery to the Closing DateUltimate Parent, Parent or their respective Affiliates of customary long form comfort letters and consents in connection with any prospectus offering) and to provide any reports of such auditors; (vii) using its commercially reasonable best efforts to cooperate with Parent to satisfy ensure that the conditions precedent to Financing benefits from the Debt Financing that are within the control existing material lender relationships of the Company or and its Subsidiaries; and (viii) providing such other reasonably available financial information as may be necessary so that any and other all information with respect provided under this Section 5.09(a) is, to the extent required under applicable securities Laws in disclosure expressly provided by the Company and its business Subsidiaries for use in any prospectus or prospectus supplement, complete and correct in all material respects and does not and will not contain any misrepresentation (as Parent defined in the Securities Act (Alberta)) or any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in light of the circumstances under which such statements are made, not misleading. The Company hereby consents to the use of all of the Company’s and its Debt Financing Sources may reasonably request Subsidiaries’ logos in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing DateFinancing; provided, however, that notwithstanding such logos are used solely in a manner that is not intended or reasonably likely to harm or disparage the foregoing, (i) nothing herein shall require the Company, Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of their respective Representatives to take its Subsidiaries. Notwithstanding any action that would be effective prior to the Closing (other than as expressly set forth provision in this Section 6.175.09(a) orto the contrary, nothing in this Section 5.09(a) shall require (A) any cooperation to the good faith judgment extent that it would unreasonably interfere with the business or operations of the Company or any of its Subsidiaries, interfere unreasonably with (B) the business Company or operations of any of its Subsidiaries to enter into any instrument or Contract, or agree to any change or modification to any instrument or Contract or take any action with respect to its existing Indebtedness, prior to the occurrence of the Closing that would be effective if the Closing does not occur, (C) the Company, jeopardize any of its Subsidiaries or their respective boards of directors (or equivalent bodies) to adopt any resolution, grant any approval or authorization or otherwise take any corporate or similar action approving the health Financing, (D) 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 Closing or (E) the Company or any of its Subsidiaries to provide pro forma financial statements or pro forma adjustments reflecting (x) the Financing or any description of all or any component of the Financing or (y) the transactions contemplated or required hereunder (it being understood that the Company shall use reasonable best efforts to assist Ultimate Parent or Parent in preparation of pro forma financial adjustments to the extent otherwise relating to the Company and safety its Subsidiaries and required in connection with the Financing). Ultimate Parent or Parent shall (i) promptly reimburse the Company for all reasonable out-of-pocket costs or expenses (including reasonable and documented costs and expenses of counsel and accountants, other than accounting costs associated with regular financial reporting by the Company) incurred by the Company, its Subsidiaries and their Representatives in connection with any employee cooperation provided for in this Section 5.09, and (ii) indemnify and hold harmless the Company and its Subsidiaries and each of their respective officers, directors, employees, agents, Representatives, successors and assigns from and against any and all claims, losses, damages, fees, costs and expenses (including fees and expenses of counsel and accountants) suffered or incurred as a result of, or in connection with, any cooperation provided pursuant to this Section 5.09 or the Financing or any information used in connection therewith (unless resulting from the bad faith, willful misconduct or gross negligence of the Company or any of its Subsidiaries or arising out of a material misrepresentation (as defined in light of COVID-19 the Securities Act (Alberta)) or any COVID-19 Measures, cause any condition a material misstatement in or failure to Closing state a material fact pertinent to fail to be satisfied the information provided by or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee on behalf of the Company or its Subsidiaries pursuant to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters5.09(a), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Transcanada Corp), Agreement and Plan of Merger (Columbia Pipeline Group, Inc.)
Financing. (a) Prior to the Closing, the The Company shall use reasonable best efforts, and shall cause its Subsidiaries to use reasonable best efforts, and shall use reasonable best efforts to cause their obtain the proceeds of the Financing on the terms and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise conditions described in the good faith judgement Commitment Letter, including using reasonable best efforts to (i) negotiate definitive agreements with respect to the Financing consistent with the terms and conditions contained therein, and (ii) satisfy on a timely basis all conditions in such definitive agreements the satisfaction of which are within the control of the Company. The Company shall use its reasonable best efforts to comply with its obligations, at Parent’s sole cost and expenseenforce its rights, under the Commitment Letter. The Company shall give Parent prompt notice of any material breach by any party to provide to the Commitment Letter of which the Company has become aware or any termination of the Commitment Letter. The Company shall not permit any amendment or modification to, or any waiver of any material provision or remedy under, the Commitment Letter if such amendment, modification or waiver materially increases the conditionality or materially delays the Financing. Parent all cooperation reasonably requested by Parent, and Merger Subsidiary shall assist and cooperate with the Company in connection with arrangingits efforts to obtain the proceeds of the Financing, syndicatingincluding (x) providing, consummating and obtaining the Debt Financing under and in accordance with the terms of Section 8.05, reasonably required information relating to Parent, Merger Subsidiary and their Subsidiaries to the Debt financial institution or institutions providing the Financing, and (y) executing and delivering, and causing such Subsidiaries to execute and deliver credit agreements, security agreements, customary certificates, legal opinions (which may be reasoned, if counsel reasonably believes it cannot give the opinion otherwise) or other agreements, certificates, documents and instruments relating to the Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectivelyor relating to guarantees, the “Debt Financing”), including: (i) assisting in the preparation pledge of a confidential information memorandum collateral and other customary marketing materials matters ancillary to the Financing, in each case as may be used reasonably requested by the Company in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers provided that, no obligation of Parent, Merger Subsidiary or any of their Subsidiaries under any such agreement, certificate, document or instrument shall be effective until the Company immediately prior to the Effective Time, and none of Parent or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other similar fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability or unreimbursed out-of-pocket expense in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the ClosingEffective Time (except, (iv) to the Company shall not be extent that any such payment is required to execute give effect to the Merger or the Parent Common Stock Redemption, in which case such payment shall be made immediately prior to the Closing any definitive financing documents (other than customary representation and authorization letters)Effective Time and, including any other certificates or documents in connection with if the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) Effective Time shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In additionoccur, the Company shall furnish promptly reimburse Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter relevant Subsidiary of Parent for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreementpayment).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (NTL Inc), Agreement and Plan of Merger (Telewest Global Inc)
Financing. (a) Prior to the Closing, the Company shall use reasonable best efforts, and shall cause its Subsidiaries to use reasonable best efforts, and Sellers shall use reasonable best efforts to to, and cause their the Transferred Subsidiaries and the other Indirect Subsidiaries and their Subsidiaries’ respective Representativesdirectors, in each caseofficers, with appropriate seniority employees, advisors and expertise in representatives to, provide to the good faith judgement of the CompanyBuyers, at Parent’s the Buyers’ sole cost and expense, to provide to Parent all reasonable cooperation reasonably requested by Parent, the Buyers that is customary in connection with arranging, syndicating, consummating and obtaining the Debt Financing under Financing, including, but not limited to, (i) furnishing to the Buyers and in accordance with the terms of the Debt Financing Commitment Letter and/or arrangingSources, syndicatingas promptly as reasonably practicable, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum such customary financial and other customary marketing materials information as the Buyers shall reasonably request in order to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with obtain the Debt Financing (subject to subclause (ivii) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five (5) Business Days prior to the Closing Date) with , providing all documentation and other customary information about the Transferred Subsidiaries and the Indirect Subsidiaries as is reasonably requested by the Debt Financing Sources with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT ActAct (iii) facilitating the granting of liens and pledging collateral as may be reasonably requested by the Buyers, provided that no guarantee, security interest or pledge shall be executed, delivered or be effective until the occurrence of the Closing and subject to compliance with applicable laws (including laws on financial assistance), (iv) permitting the Debt Financing Sources to evaluate and appraise the Transferred Subsidiaries’ and the Indirect Subsidiaries’ current assets and liabilities, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral and/or security arrangements after the Closing, and in each case, requested (v) obtaining such payoff letters and collateral lien and/or security releases as are required by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that drafts of such payoff letters and collateral and/or security releases are provided in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statementsaccordance with Section 7.4(g), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date); provided, however, that notwithstanding anything in this Agreement to the foregoingcontrary, (i) nothing herein shall require none of the CompanySellers, its the Transferred Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing Indirect Subsidiaries shall (other than as expressly set forth in this Section 6.17A) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other similar fee or make any other payment consent fee (other than fees the Transferred Subsidiaries and costs which are reimbursed by Parent in accordance with this Section 6.17Indirect Subsidiaries after Closing), (B) have prior to the Closing any liability or obligation under the Debt Commitment Letters, any loan agreement or certifications or any related document or any other agreement or document related to the Debt Financing, (C) be required to incur prior to the Closing any other liability in connection with the Debt Financing Financing, (D) take any action that would (x) unreasonably interfere with its ongoing business operations or provide (y) conflict with or violate laws, or result in a contravention of, or that would reasonably be expected to result in a violation or breach of, or default under, any material contract to which it is a party, (E) be required to agree to provide any indemnity in connection with any Debt Financing inducement or business to any of the foregoing that would Debt Financing Sources or (F) except only as will be executed, delivered and effective prior to the Closing, (iv) the Company shall not be required to execute prior to at the Closing any definitive financing documents (other than customary representation and authorization letterssubject to compliance with applicable laws (including laws on financial assistance), including take any other certificates corporate action or documents execute any consent approving, or executing any document or agreement relating to, the Debt Financing. The Buyers shall indemnify and hold harmless Sellers, the Transferred Subsidiaries and the Indirect Subsidiaries for any and all losses, costs and expenses actually suffered or incurred by them in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation arrangement of the Debt Buyer Financing (except for or any corporate actions that are conditioned upon action taken by them at the Closing), and (vi) no Representative request of the Company or any of its Subsidiaries shall be required Buyers pursuant to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)Section 6.13.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Mallinckrodt PLC)
Financing. (a) Prior to From the Closingdate of this Agreement until the earlier of the Closing Date and the Termination Date, each of the Company shall use reasonable best efforts, and shall cause its Subsidiaries the Partnership agrees to use reasonable best effortsefforts to provide, and shall to use reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company Subsidiaries (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining other than the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificatePartnership) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any each of their respective Representatives to take any action that would provide, such cooperation as may be effective prior to reasonably requested by Parent in connection with the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment arrangement of the Company or any receipt of its Subsidiaries, interfere unreasonably with the business or operations proceeds (x) from an issuance of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement equity by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates direct or indirect equityholders (the “Equity Financing”) or (y) from an issuance of debt by Parent or any prospective lender of its direct or indirect equityholders (the “Debt Financing,” with the Equity Financing and Debt Financing each referred to hereafter as a “Financing”), including reasonable best efforts to (i) provide assistance with any discussions of and/or furnish, as applicable, such business, financial statements, pro forma financials, projections, management discussion and analysis and other customary financial data and information reasonably required in connection with any Financing, all for use in connection therewith, (ii) direct their respective representatives if doing so would result independent accountants to provide customary and reasonable assistance in the waiver of connection with any legal privilege or work product protection of any of the Company or its AffiliatesFinancing, directors, officers or employeesincluding in connection with providing customary comfort letters and consents, (iii) neither the Company nor its Affiliatesobtain customary payoff letters, directors, officers, employees, agents releases of liens and Representatives shall be required to pay any commitment other instruments of termination or other fee or make any other payment (other than fees and costs which are reimbursed discharge reasonably requested by Parent in accordance with this Section 6.17) or incur any other liability of its direct or indirect equityholders in connection with the repayment of indebtedness of the Company, the Partnership and their respective Subsidiaries as necessary to consummate the transactions contemplated by this Agreement and (iv) subject to Section 5.19(a), authorize and facilitate discussions, meetings and other engagement by Parent, its Subsidiaries or Affiliates, Xxxx Manager, its Subsidiaries or Affiliates, or SU, its Subsidiaries or Affiliates, with the current lenders, noteholders or other providers of Existing Indebtedness to the Company or the Company Subsidiaries for the purpose of obtaining Debt Financing Financing, including by necessary or provide appropriate waivers of the Confidentiality Agreement to permit such activities. Parent shall reimburse the Company for all reasonable out-of-pocket costs or agree expenses incurred by the Company and the Company Subsidiaries in connection with cooperation provided for in this Section 5.17(a) to provide any indemnity the extent the information requested was not otherwise prepared or available in the ordinary course of business. Any lender, underwriter, arranger, manager, placement agent or similar entity in connection with any Debt Financing by Sempra or any its Affiliates shall be deemed to be a “Representative” of Sempra for the purposes of the foregoing that would be effective prior to Amended and Restated Confidentiality Agreement, dated June 18, 2018, by and between Sempra Energy and the ClosingCompany. Any lender, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters)underwriter, including any other certificates arranger, manager, placement agent or documents similar entity in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of Financing by Parent or its Subsidiaries (nor their respective governing bodies) Affiliates shall be required deemed to take any corporate actions prior to the Closing to permit the consummation be a “Representative” of Parent for purposes of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Confidentiality Agreement).
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (InfraREIT, Inc.)
Financing. (a) Prior to the Closing, the Company Parent and Merger Subsidiary shall use reasonable best efforts, and shall cause its Subsidiaries to use reasonable best efforts, and shall use their reasonable best efforts to take, or cause their to be taken, all actions and their Subsidiaries’ respective Representativesto do, in each caseor cause to be done, with appropriate seniority and expertise in the good faith judgement of the Companyall things necessary, at Parent’s sole cost and expense, proper or advisable to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting maintain in effect the Financing and the Financing Commitments, (ii) negotiate and enter into definitive financing agreements with respect to the Financing and Financing Commitments on terms and conditions (including the “flex” provisions) contemplated by the Financing Commitments, so that such agreements are in effect as promptly as practicable after the date hereof but in any event no later than the Acceptance Time, (iii) cause their respective Representatives to cooperate in the preparation of a confidential information memorandum all documents (including offering memoranda, private placement memoranda, prospectuses and other customary marketing materials to be used road show presentations, if any) and the making of all filings in connection with the marketing Financing and the other transactions contemplated by the Financing Commitments, and in executing and delivering all documents and instruments related to the Financing Commitments, (iv) satisfy on a timely basis all conditions applicable to Parent and Merger Subsidiary in the Financing Commitments that are within its control and comply with its obligations thereunder, (v) enforce their rights under the Financing Commitments in the event of a breach by the Financing Sources that impedes or delays the consummation of the Debt Financing, including seeking specific performance of the parties thereunder and (vi) otherwise taking, or causing to be taken, all actions and doing, or causing to be done, all other things necessary, proper or advisable to consummate the Financing at or prior to the Acceptance Time. Parent and Merger Subsidiary shall provide to the Company copies of all final documents relating to the Financing and ratings agency presentations shall keep the Company fully informed of material developments in respect of the financing process relating thereto. Prior to the Acceptance Time, Parent and delivering customary representation and authorization letters Merger Subsidiary shall not agree to, or permit, any amendment or modification of, or waiver under, the Financing Commitments or other final documentation relating to the Financing in connection therewith; a manner that (iix) upon reasonable would materially delay or prevent the Closing in any respect or (y) is otherwise adverse to the Company in any material respect, without the prior notice and at times to be reasonably agreed, participation of representatives of senior management written consent of the Company (which participation consent may be by videoconference) withheld in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreementsole discretion).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (MediaMind Technologies Inc.), Agreement and Plan of Merger (DG FastChannel, Inc)
Financing. (a) Prior to the ClosingEffective Time, the Company shall use reasonable best effortsprovide, and shall cause its Subsidiaries to use reasonable best effortsprovide, and shall use its reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority including legal and expertise in the good faith judgement of the Company, at Parent’s sole cost and expenseaccounting Representatives, to provide to Parent provide, all cooperation reasonably requested by Parent, Parent in connection with arranging, syndicating, consummating and obtaining the arrangement of the financings contemplated by any Debt Financing under and in accordance Commitments (provided that such requested cooperation does not unreasonably interfere with the terms ongoing operations of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating Company and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”its Subsidiaries), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies; (ii) assisting with the preparation of materials for rating agency meetingspresentations, as well as a reasonable number of meetings with Debt Financing Sources; offering documents, private placement memoranda, bank information memoranda, prospectuses, marketing materials and similar documents (iiiincluding MD&A and business description) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of provided, that any private placement memoranda or prospectuses in relation to high yield debt securities need not be issued by the Company or any of its Subsidiaries who will be officers of Subsidiaries; provided, further, that any such memoranda or prospectuses shall contain disclosure and financial statements with respect to the Company or any of the Surviving Corporation reflecting the Surviving Corporation and/or its Subsidiaries after Closing to execute as the obligor; (iii) executing and deliver delivering any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates pledge and secretary’s certificates prepared security documents, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a the chief financial officer of the Company with respect to solvency matters of the Company on a consolidated basis and consents of accountants for use of their reports in a customary form required any materials relating to consummate the Debt Financing as Financing) and otherwise reasonably facilitating the granting, pledging, recording and perfection of the Closing Datecollateral; (viiv) furnishing Parent and its financing sources as promptly as practicable (and in any event at least five no later than 25 Business Days prior to the Closing End Date) with all documentation financial and other pertinent information with respect to regarding the Company as may be reasonably requested by Parent, including all financial statements and financial and other data of the type that would be required by regulatory authorities Regulation S-X and Regulation S-K under applicable “know your customer” the Securities Act of the type and anti-money laundering rules and regulations, including without limitation form customarily included in private placements under Rule 144A of the PATRIOT Act, and in each case, requested Securities Act to consummate the offerings of securities contemplated by the Debt Financing Sources Commitments at the time during the Company’s fiscal year such offerings will be made (the “Required Financial Information”); (v) using commercially reasonable efforts to assist Parent in writing at least ten Business Days prior connection with the satisfaction of the conditions of the Debt Financing Commitment, (vi) providing monthly financial statements (excluding footnotes) within the time frame, and to the Closing Dateextent, the Company prepares such financial statements; (vii) using reasonable best efforts taking all actions reasonably necessary to cooperate (A) permit the prospective lenders involved in the Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (B) establish blocked account agreements in connection with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiariesforegoing; (viii) providing such entering into one or more credit or other agreements on terms reasonably available financial and other information with respect satisfactory to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that contemplated by the Debt Financing Commitment Letter requires Commitments immediately prior to be paid off, discharged or terminated on the Closing DateEffective Time; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative none of the Company or any of its Subsidiaries shall be required to make enter into any certifications that it does not purchase agreement for any high yield debt financing (other than bridge financing); and (ix) taking all corporate actions, subject to the occurrence of the Closing, reasonably in good faith believe requested by Parent to be true. In additionpermit the consummation of the financings contemplated by the Debt Financing Commitments and the direct borrowing of all of the proceeds of, the Company shall furnish Parent reasonably promptly (andincurrence of the debt contemplated by, in and the issuance of the securities contemplated by, the Debt Financing Commitments, including any eventhigh yield debt and any preferred financing, by the Surviving Corporation concurrently or immediately following the Effective Time; provided, that prior to the Closing) Effective Time neither the Company nor any of its Subsidiaries shall be required to pay any commitment or other similar fee or incur any other cost or expense that is not simultaneously reimbursed by Parent in connection with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (prior to the Effective Time. Parent or Merger Sub shall, promptly upon request by the analogous provision Company, reimburse the Company for all reasonable and documented out-of-pocket costs incurred by the Company or any of its Subsidiaries in connection with such cooperation and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives for and against any commitment letter for any Alternative and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the Debt Financing (other than to the extent such losses arise from the willful misconduct of the Company, any of its Subsidiaries or their respective Representatives) and any information utilized in connection therewith (other than information provided by the Company or any of its Subsidiaries). The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided, that such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the conditions set forth in such analogous provision Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries and its or their marks. All non-public or otherwise confidential information regarding the Company obtained by Parent, Merger Sub or their Representatives pursuant to this Section 7.10(a) shall be not more burdensome to kept confidential in accordance with the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Confidentiality Agreement).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Community Health Systems Inc), Agreement and Plan of Merger (Triad Hospitals Inc)
Financing. (a) Prior to the Closing, the Company shall use reasonable best effortsshall, and shall cause its the Company Subsidiaries to use reasonable best effortsto, and shall use reasonable best efforts to cause their provide to Contributor, Raptor and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all Subsidiaries such cooperation reasonably requested by ParentContributor, Raptor and their respective Subsidiaries, and which is customarily provided by similarly situated Persons engaging in similar transactions, in connection with arrangingthe Company, syndicatingthe Company Subsidiaries or its or their respective assets pursuing any proposed financing, consummating and obtaining the Debt Financing under and in accordance with the terms including any expansion of any existing arrangements relating to Indebtedness for Borrowed Money of the Debt Financing Commitment Letter and/or arrangingContributor, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, to reflect the “Debt Financing”)consolidation of the assets of the Company with those of the Contributed Entities, including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (viia) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial marketing efforts and other information assist with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary materials for rating agency presentations and bank books, offering memoranda or other marketing documents, customarily reviewed or reasonably requested by such rating agencies and banks; (b) upon reasonable prior written notice, participating at reasonable times (and during regular business hours) in a reasonable number of meetings, presentations and rating agency and due diligence sessions; and (c) reasonably assisting with the preparation of any credit agreement, reasonable pledge and security documents, currency or interest hedging arrangements, other definitive financing documentation and the completion of any schedulesdocuments, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged other certificates or terminated on the Closing Datedocuments; provided, however, that notwithstanding the foregoing, (iA) nothing herein in this Section 5.24 shall require the Company, its Subsidiaries or any of their respective Representatives Company to (I) take any action that would reasonably be effective expected to conflict with or violate any of the Company’s Organizational Documents or any Law or (II) pay any fees, reimburse any expenses or give any indemnities prior to the Closing, (B) nothing in this Section 5.24 shall require such cooperation to the extent it would unreasonably interfere with the ongoing business or operations of the Company, (C) no obligation of the Company or any Company Subsidiary under any document or agreement executed by the Company or any Company Subsidiary in connection with this Section 5.24 shall be effective until the Closing and (other than D) Contributor 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 the Company Subsidiaries under this Section 5.24; provided, further, that, except as expressly set forth in this Section 6.17Agreement, nothing in this Agreement shall require the Company or the Company Subsidiaries to cause the delivery of (x) legal opinions or reliance letters, (y) any financial information in a form not customarily prepared by the Company with respect to such period or (z) any financial information with respect to a fiscal period that has not yet ended or has ended less than forty-five (45) days prior to the date of such request (or, in the good faith judgment case of annual financial statements, ninety (90) days prior to such request). For the Company or avoidance of doubt, each Party acknowledges and agrees that obtaining any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any proposed financing contemplated by this Section 5.24 is not a condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company and shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the delay Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement).
Appears in 2 contracts
Samples: Contribution Agreement (Blackstone Holdings III L.P.), Contribution Agreement (Altus Midstream Co)
Financing. (a) Prior to the ClosingHarbor, the Company Spinco and Voyager shall use their reasonable best efforts to, and to cause their respective Subsidiaries and Representatives and advisors to use, their reasonable best efforts to, arrange and to consummate the Spinco Financing and the Additional Financing as contemplated by the Commitment Letter, dated as of December 5, 2018, by and among Harbor, Spinco and the arrangers party thereto, or on such other terms and conditions reasonably acceptable to Harbor, Spinco and Voyager and use their respective reasonable best efforts, and shall cause its Subsidiaries to use reasonable best efforts, and shall use reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expenseas applicable, to provide to Parent cooperate in all cooperation aspects necessary or reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used Harbor or Voyager in connection with the marketing arrangement and consummation of the Debt Spinco Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; the Additional Financing, including, without limitation, (iiA) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) participating in a reasonable number of meetings, presentations, and meetings with, and presentations to, prospective lenders and rating agencies; (B) assisting with the marketing and due diligence sessionsefforts with respect to the Spinco Financing and the Additional Financing, drafting sessions and including the preparation of materials for rating agency meetingspresentations, bank information memoranda, lender presentations and other customary marketing materials, including execution and delivery of customary authorization letters (by each of the Persons required by the Lenders to deliver such letters); (C) furnishing financial and other information regarding Voyager, Spinco and their respective Subsidiaries, as well as a reasonable number of meetings with Debt required by the Spinco Financing Sourcesand the Additional Financing (all such information in this clause (C), the “Required Information”); (iiiD) using their reasonable best efforts to obtaining legal opinions, appraisals, surveys, title insurance and other documentation and items relating to the Spinco Financing or the Additional Financing; (E) executing and delivering any pledge and security documents, other definitive financing documents, or other certificates, mortgages, documents and instruments relating to guarantees, or documents, in each case as and when required by the Spinco Financing or the Additional Financing (including a certificate of the Chief Financial Officer (or officer of equivalent duties) of Spinco or any Subsidiary with respect to solvency matters, all back up and supporting information, as may be reasonably required by the person signing such certificate to support the conclusions set forth therein) and otherwise facilitating the pledging of collateral and providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining of guarantees contemplated by the customary legal opinions required to be delivered Spinco Financing or the Additional Financing (including cooperation in connection with the Debt Financingpay-off of existing Indebtedness and the release of related liens); (ivF) permitting officers using their reasonable best efforts in taking all reasonable actions necessary to (I) permit the prospective persons involved in the Spinco Financing or the Additional Financing to evaluate Voyager, Spinco and their respective Subsidiaries, including Spinco’s and Voyager’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute establishing collateral arrangements and deliver any documentation (II) establish bank and other accounts, blocked account agreements and lock box arrangements in connection with the Debt Financing (subject to subclause (iv) foregoing as required by the terms of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorizationSpinco Financing or the Additional Financing; provided, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing no such arrangement or agreement shall not require the adoption of any corporate resolutions or actions become effective prior to the Closing Date; (vG) using reasonable best efforts to obtain waivers, consents, estoppels and approvals from other parties to material leases, Encumbrances and Contracts to which any Subsidiary of Spinco or Voyager is a party, in each case to the extent required by the terms of the Spinco Financing or the Additional Financing; (H) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities concerning such Person under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Patriot Act, ; and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (viiI) using reasonable best efforts to cooperate with Parent the lenders in their efforts to satisfy benefit from the conditions precedent to the Debt Financing that are within the control existing lending relationships of the Company Harbor, Spinco or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing DateVoyager; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior such cooperation to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, extent it would interfere unreasonably with the business or operations of Harbor, Spinco or Voyager or any of their respective Subsidiaries; provided, further, that for the Companyavoidance of doubt, jeopardize nothing set forth in this Section 6.17 shall require Harbor, Spinco or Voyager or any of their respective Subsidiaries to enter into any documentation prior to the health Closing Date (other than an authorization letter pursuant to clause (B) above). Without limiting the foregoing, Harbor shall consult in good faith with Voyager and safety of any employee its professional advisers regarding the material aspects of the Company Spinco Financing and the Additional Financing, including the form and manner thereof and shall consider in good faith comments provided by Voyager and its professional advisers in obtaining the Spinco Financing and the Additional Financing. Harbor, Spinco and Voyager will update any such Required Information in order to ensure that such Required Information does not contain any untrue statement of material fact or omit to state any material fact necessary in order to make the statements contained therein not materially misleading, as and to the extent required by the terms of the Spinco Financing or the Additional Financing. Each of Spinco and Voyager hereby consents to the use of its and its Subsidiaries’ logos in connection with the Spinco Financing and the Additional Financing; provided, that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage it or its reputation or goodwill or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)intellectual property rights.
Appears in 2 contracts
Samples: Merger Agreement (Henry Schein Inc), Merger Agreement (HS Spinco, Inc.)
Financing. (a) Prior to the Closing, the Company shall use reasonable best effortsSellers shall, and shall cause the Company and its Subsidiaries to to, use commercially reasonable best efforts, and shall use reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all such cooperation as may be reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used Buyer in connection with the marketing financing of the Debt Financing transactions contemplated by this Agreement, if any, including using commercially reasonable efforts to cause appropriate officers and ratings agency presentations employees to be available, on a customary and delivering customary representation reasonable basis and authorization letters in connection therewith; (ii) upon reasonable prior notice notice, to discuss pertinent matters with prospective lenders and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered investors in connection with the Debt Financing; (iv) permitting officers preparation of the Company any information memos, offering memoranda or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute other marketing and deliver any documentation disclosure documents and customary information in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent therewith (including certification (a) discussions with such officers and employees regarding the preparation of organizational authorizationappropriate discussions of business, organizational documents financial statements, pro forma financials, projections, management discussion and good standing certificates) analysis, and other customary financial data of the Company and its Subsidiaries, and taking corporate action to authorize (b) one in-person meeting with the borrowing Buyer’s syndicate lenders in Northbrook, Illinois or the surrounding area and guarantees of the Debt Financingone on-site visit by such lenders, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior following which such officers and employees, subject to the Closing Date; (v) furnishing a certificate terms of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in this Agreement, shall answer any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing questions arising from such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statementsmeeting), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth contained in this Section 6.17) or6.20 shall require, and in no event shall the good faith judgment commercially reasonable efforts of the Sellers be deemed or construed to require, the Sellers or the Company or any of the Company’s Subsidiaries to (i) allow any arranger or syndicate lender access to the personnel or facilities of the Company or its SubsidiariesSubsidiaries that is greater in scope or frequency than the access afforded to the Buyer under this Agreement, interfere unreasonably with (ii) require the business Sellers, the Company or operations of any of the Company’s Subsidiaries to make any representations or warranties in connection the Financing or otherwise incur any actual or potential liability or cost in connection with the Financing, jeopardize (iii) be in privity with any arranger, lender or other party to the health Financing, (iv) make any disclosure not required under this Agreement, (v) waive or modify any terms of this Agreement or any other Contract to which the Sellers the Company or any of the Company’s Subsidiaries is a party or (vi) make any binding commitment by the Company or any of the Subsidiaries which commitment is not conditioned on the Closing and safety of any employee of does not terminate without liability to the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach upon the termination of this Agreement Agreement. The Buyer shall indemnify and defend the Sellers, their Affiliates and their respective stockholders, members, partners, managers, officers, directors, employees and agents against, and shall hold each of them harmless from, any Loss arising out of or resulting from any act taken by Parent or Merger Subthe Sellers, cause any director, officer or employee of the Company or its the Company’s Subsidiaries pursuant to incur any liability or cause any breach of any Applicable Lawthis Section 6.20. The Buyer shall, (ii) promptly upon request by the Sellers, reimburse the Sellers, the Company shall not be required to disclose and the Company’s Subsidiaries for any information to Parent and all documented out-of-pocket costs or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in expenses incurred by the waiver of any legal privilege or work product protection of Sellers, the Company and/or any of the Company or its AffiliatesCompany’s Subsidiaries, directorsas applicable, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree its cooperation pursuant to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)Section 6.20.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement
Financing. (a) Prior to the ClosingEffective Time, the Company shall use reasonable best effortsprovide, and shall cause its Subsidiaries to use reasonable best effortsSubsidiaries, and shall use all reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, including legal and accounting, to provide all reasonable cooperation requested by SibCo or MergerCo in connection with the Financing and the other transactions contemplated by this Agreement (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), including (i) participation in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the Financing; provided that any private placement memoranda or prospectuses in relation to high yield debt securities need not be issued by the Company or any of its Subsidiaries prior to the Effective Time; provided further that any such memoranda or prospectuses shall contain disclosure and financial statements with respect to the Company or the Surviving Corporation reflecting the Surviving Corporation and/or its Subsidiaries as the obligor, (iii) executing and delivering any pledge and security documents, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by SibCo or MergerCo (including a certificate of the chief financial officer of the Company or any Subsidiary with respect to solvency matters as of the Effective Time and consents of accountants for use of their reports in any materials relating to the Debt Financing), (iv) reasonably facilitating the pledging of collateral, (v) furnishing SibCo or MergerCo and their respective Financing sources as promptly as practicable (and in any event no later than 25 Business Days prior to the Outside Date) with such financial and other pertinent information regarding the Company as may be reasonably requested by SibCo or MergerCo, including all financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act and of type and form customarily included in private placements under Rule 144A of the Securities Act to consummate the offerings of debt securities contemplated by the Debt Financing Letter at the time during the Company’s fiscal year such offerings will be made (“Required Financial Information”), (vi) providing assistance to SibCo and MergerCo in connection with the satisfaction of the conditions set forth (A) in clauses (b), (c) and (d) of paragraph 6 of the Debt Financing Letter, (B) opposite the heading “Conditions Precedent to Initial Borrowing” in Exhibit A to the Debt Financing Letter (other than payment of fees and expenses and absence of a Company Material Adverse Effect), and (c) in paragraphs 2, 3, 4, 5, and 6 of Exhibit D to the Debt Financing Letter (in each case, with appropriate seniority and expertise in to the good faith judgement extent the satisfaction of such condition requires actions by or cooperation of the Company), at Parent’s sole cost (vii) using all reasonable efforts to obtain accountants’ comfort letters, legal opinions, surveys and expense, to provide to Parent all cooperation title insurance as reasonably requested by ParentSibCo or MergerCo, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms (viii) using all reasonable efforts to provide monthly financial statements (excluding footnotes) within 25 days of the Debt Financing Commitment Letter and/or arrangingend of each month prior to the Closing Date to the extent the Company prepares such financial statements within such timeframe, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, ix) taking all actions reasonably necessary to (A) permit the “Debt Financing”), including: (i) assisting prospective lenders involved in the preparation Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of a confidential information memorandum establishing collateral arrangements and (B) establish bank and other customary marketing materials to be used accounts and blocked account agreements and lock box arrangements in connection with the marketing foregoing, (x) assisting SibCo or MergerCo with any presentation to the SEC with regard to the recording of the Merger as a recapitalization for financial reporting purposes in accordance with GAAP and cooperating in good faith with SibCo or MergerCo, if so requested by SibCo or MergerCo, in order to develop alternative means of recording the Merger as a recapitalization for financial reporting purposes in accordance with GAAP and (xi) taking all corporate actions, subject to the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to permit the proceeds thereof to be reasonably agreed, participation of representatives of senior management made available to the Surviving Corporation immediately following the Effective Time; provided that neither of the Company (which participation may nor any of its Subsidiaries will be required to pay any commitment or other similar fee that is not simultaneously reimbursed by videoconference) MergerCo in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings connection with the Debt Financing Sources; prior to the Effective Time. Following a Reimbursement Eligible Termination, MergerCo shall, promptly upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs and expenses incurred by the Company or any of its Subsidiaries or any of their respective Representatives in connection with such cooperation. MergerCo shall indemnify and hold harmless the Company, any of its Subsidiaries and their respective Representatives for and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties (iiiexcluding the out-of-pocket costs and expenses referred to in the immediately preceding sentence) providing customary suffered or incurred by them in connection with the arrangement of the Financing and any information and assistance reasonably necessary utilized in connection therewith (other than historical information provided by the Company or any of its Subsidiaries). The Company hereby consents to assist Parent the use of its and its counsel with obtaining the customary legal opinions required to be delivered Subsidiaries’ logos in connection with the Debt Financing; (iv) permitting officers provided that such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)marks.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Aramark Corp/De), Agreement and Plan of Merger (Neubauer Joseph)
Financing. (a) Prior to the Closing, the Company shall use reasonable best effortsThe Debtor shall, and shall cause its Subsidiaries to use reasonable best effortsto, and shall use reasonable best efforts to cause their provide and direct its and their respective Representatives to use their respective reasonable best efforts to provide all cooperation reasonably requested by Parent in connection with the arrangement, syndication and consummation of any debt financing by Parent or its Subsidiaries and the Debtor or any of its Subsidiaries’ respective Representatives, any equity financing of Parent or any minority investment in the Debtor or any of its Subsidiaries (not to exceed ten percent (10%) of the fully-diluted equity of the Debtor or such Subsidiary) including (i) the refinancing of the indebtedness under the Centerbridge Facility, whether at the Debtor, Parent or any of their Subsidiaries (such financing, the “Manorcare Financing”), (ii) the refinancing of the indebtedness under the First Lien Credit and Guaranty Agreement, dated as of October 31, 2016, by and among QCP SNF West REIT, LLC, QCP SNF Central REIT, LLC, QCP SNF East REIT, LLC, QCP AL REIT, LLC, QCP Holdco REIT, LLC, Parent, certain Subsidiaries of Parent from time to time party to the credit agreement as guarantors, the lenders party thereto and Barclays Bank PLC, as Administrative Agent and Swing Line Lender, and the L/C Issuers at Parent or any of its Subsidiaries and (iii) the refinancing of the $750 million senior secured notes due 2023 issued pursuant to that certain Indenture, dated as of October 17, 2016, among QCP SNF West REIT, LLC, QCP SNF Central REIT, LLC, QCP SNF East REIT, LLC and QCP AL REIT, LLC, as issuers, and Wilmington Trust, National Association, as trustee and notes collateral agent (such financing, together with the Manorcare Financing, the “Financing”). Such cooperation shall include (i) furnishing Parent and its Debt Financing Sources with the Audited Financial Statements and with audited financial statements for the Debtor and its Subsidiaries for each subsequent fiscal year within fifty (50) days after the end of such fiscal year, and quarterly and interim unaudited financial statements for the Debtor and its Subsidiaries for the fiscal quarters and interim periods ended March 31, 2018, June 30, 2018 and September 30, 2018 and for each subsequent fiscal quarter within thirty-five (35) days after the end of such fiscal quarter, in each case, with appropriate seniority and expertise in comparative financial information for the good faith judgement equivalent period of the Companyprior year; (ii) using reasonable best efforts to furnish Parent and its Debt Financing Sources with information, at Parent’s sole cost audit reports, historical business and expenseother financial data and any supplements thereto regarding the Debtor and its Subsidiaries customarily included in information memoranda and other syndication materials for revolving, term loan credit facilities, bond offering documents and equity offering documents, including assisting in preparing pro forma financial information for the Debtor and its Subsidiaries; (iii) to provide to Parent all cooperation the extent reasonably requested by Parent, in connection with arranging, syndicating, consummating using reasonable best efforts to prepare carve-out audited and obtaining unaudited financial statements for the time period required or desirable to any Debt Financing under Source; (iv) using reasonable best efforts to cause members of management and other senior officers to participate in accordance a reasonable number of meetings (including one-on-one meetings or conference calls), lender presentations, due diligence sessions and sessions with the terms of the rating agencies, prospective lenders and investors and other syndication and marketing activities; (v) reasonably assisting Parent and its Debt Financing Commitment Letter and/or arrangingSources in the preparation of any syndication and offering documents and materials, syndicatingincluding information memoranda, consummating lender presentations, offering memoranda, registration statements, prospectuses and obtaining any Alternative Debt Financing other marketing documents (collectively, the “Debt FinancingMarketing Documentation”), including: ) and provide and execute a customary authorization letter with respect thereto; (ivi) reasonably cooperating in marketing efforts of Parent; (vii) reasonably assisting in the negotiation and preparation of a confidential information memorandum any credit agreements, indentures, underwriting agreements, purchase agreements, pledge and security documents, mortgages, guarantees, hedging agreements and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreeddefinitive documents, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a the chief financial officer of the Company Debtor with respect to solvency matters in a customary form required acceptable to consummate Parent and any other certificates, letters and documents (including any schedules and exhibits in connection with the Debt Financing foregoing) as of the Closing Datemay be reasonably requested by Parent; (viviii) furnishing Parent promptly reasonably assisting in the obtaining of (A) audit reports, authorization letters, comfort letters and in any event at least five Business Days prior to the Closing Date) with all documentation consents of accountants and other information auditors with respect to financial statements for the Company Debtor and its Subsidiaries for inclusion in any Marketing Documentation and (B) payoff letters, instruments of discharge and Lien terminations; (ix) providing information regarding the Debtor and its Subsidiaries required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation limitation, the PATRIOT ActUSA Patriot Act of 2001, and in each case, to the extent requested by the its Debt Financing Sources in writing at least ten Business Days eight (8) business days prior to the Closing DateClosing; (viix) reasonably assisting Parent in obtaining corporate, facility and debt security ratings from rating agencies; (xi) reasonably cooperating with Parent’s legal counsel (including providing customary back-up certificates) in connection with any legal opinions that such legal counsel may be required to deliver in connection with the Financing; (xii) taking such reasonable actions as may be reasonably requested by Parent necessary to permit its Debt Financing Sources to evaluate the Debtor’s assets and cash management policies and procedures relating thereto for the purposes of establishing collateral arrangements as of the Closing and to cooperate with other due diligence conducted by its Debt Financing Sources; (xiii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent obtain customary evidence of authority, customary officer’s certificates, good standing certificates (to the Debt Financing that are within extent applicable) in the control respective jurisdictions of organization of the Company or Debtor and its Subsidiaries; (viii) providing such other reasonably available financial and other information , customary lien searches with respect to the Company Debtor and its business as Subsidiaries and insurance certificates; (xiv) using reasonable best efforts to facilitate the granting of a security interest (or perfection thereof) in collateral by the Debtor and its Subsidiaries to secure the Financing at Closing; and (xv) if applicable, reasonably cooperating with Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Centerbridge Facility at Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement).
Appears in 2 contracts
Samples: Plan Sponsor Agreement, Plan Sponsor Agreement (Quality Care Properties, Inc.)
Financing. (a) Prior to the Closing, the The Company shall use reasonable best efforts, and shall cause its Subsidiaries to use reasonable best efforts, and shall use reasonable best efforts to cause their its and their Subsidiaries’ respective Representatives, in each case, representatives shall provide all reasonable cooperation (including with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, respect to provide to Parent all cooperation reasonably requested by Parent, timeliness) in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms arrangement of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing as may be reasonably requested by the Purchaser (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection provided that such requested cooperation does not unreasonably interfere with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) ongoing operations of the Company and its Subsidiaries), including (i) participating in meetings, road shows, meetings with ratings agencies, drafting sessions and taking corporate action due diligence sessions, (ii) promptly furnishing the Purchaser and its financing sources with financial and other pertinent information regarding the Company as may be reasonably requested by the Purchaser, including all financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act and of type and form customarily included in private placements under Rule 144A of the Securities Act to authorize consummate the borrowing offering of senior or senior subordinated notes (the “Required Financial Information”), (iii) assisting the Purchaser and guarantees its financing sources in the preparation of (A) offering documents, prospectuses or memoranda for any of the Debt Financing and (B) materials for rating agency presentations, (iv) reasonably cooperating with the marketing efforts of the Purchaser and its financing sources for any of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing providing and executing documents as may be reasonably requested by the Purchaser, including a certificate of a the chief financial officer of the Company with respect to solvency matters and consents of accountants for use of their reports in a customary form required any materials relating to consummate the Debt Financing as of the Closing Date; Financing, (vi) furnishing Parent promptly (reasonably facilitating the pledging of collateral and assisting in any event at least five Business Days prior to the Closing Date) with all documentation negotiation and other information with respect to execution of the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsFinancing Agreements, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using commercially reasonable best efforts to cooperate obtain accountants’ comfort letters, legal opinions with Parent respect to satisfy regulatory matters, surveys and title insurance as reasonably requested by the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; Purchaser, and (viii) providing such other reasonably available monthly financial and other information with respect to statements; provided that none of the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other similar fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability (except for amounts subject to reimbursement or indemnification pursuant to the next sentence) in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative obligation of the Company or any of its Subsidiaries under any Financing Agreement shall be required to make any certifications that it does not reasonably effective until the Closing. The Purchaser shall, promptly upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs incurred by the Company and its Subsidiaries in good faith believe to be trueconnection with such cooperation. In additionThe Purchaser shall indemnify and hold harmless the Shareholders, the Company and its Subsidiaries and their respective representatives for and against any and all Damages suffered or incurred by them in connection with the arrangement of the Debt Financing and any information utilized in connection therewith (other than information provided by the Company or any of its Subsidiaries). The Purchaser shall furnish Parent reasonably promptly use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable that are within the Purchaser's control to (andi) maintain in effect the Debt Commitment Letter and to satisfy on a timely basis all the conditions to obtaining the Debt Financing set forth therein, (ii) enter into definitive financing agreements with respect to the Debt Financing as contemplated by the Debt Commitment Letter (the "Financing Agreements"), so that the Financing Agreements are in any event, effect at or prior to Closing and (iii) consummate the Financing at or prior to the Closing) with ; provided, however, that the financial statements identified Purchaser acknowledges and agrees that the failure to consummate the Financing shall not constitute a condition to the Purchaser’s obligation to proceed to the Closing (assuming the satisfaction or waiver of the conditions set forth in paragraphs 6 and 7 of Exhibit C Article VI hereof); provided, further, that if any of the Debt Financing Commitment Letter (or the analogous provision Financing Agreements expire or are terminated or otherwise become unavailable prior to the Closing, in any commitment letter whole or in part, for any Alternative Debt Financing (provided that reason, the conditions Purchaser may arrange for alternative financing on such terms as or more favorable to the Purchaser than the terms set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as to replace the financing contemplated by such expired or terminated or unavailable commitments or agreements, sufficient to consummate the Transactions in effect on the date of this Agreement)time periods required hereunder.
Appears in 2 contracts
Samples: Stock Purchase Agreement (American Airlines Inc), Stock Purchase Agreement (Amr Corp)
Financing. (a) Prior to the Closing, the Company shall use reasonable best effortsTitanium shall, and shall cause its Subsidiaries to to, use reasonable best efforts, and shall use its reasonable best efforts to cause their and their Subsidiaries’ respective Representativesprovide, in each caseat Silver’s sole expense, with appropriate seniority and expertise the following cooperation as Silver may reasonably request to assist Silver in the good faith judgement arrangement of any third party financing transaction related to the CompanyTransactions (provided, at Parent’s sole cost and expense, to provide to Parent all that such requested cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance does not unreasonably interfere with the terms ongoing operations of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: Titanium or its Subsidiaries): (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) participate in a reasonable number of meetings, drafting sessions, rating agency presentations and due diligence sessions, drafting sessions and assist in preparation of rating agency meetingsand other presentations (provided that Titanium and its Subsidiaries and their respective Representatives shall not be required to participate in more than one road show or similar meeting in respect of marketing third party financing); (ii) furnish Silver and its financing sources with such financial statements, financial data and other information regarding Titanium and its Subsidiaries of the type that would be required by Regulation S-X and Regulation S-K promulgated under the Securities Act for a public offering of securities of Silver if Silver were filing a new registration statement (including for use in Silver’s preparation of pro forma financial statements, it being understood that Silver shall be responsible for preparing any pro forma adjustments and financial statements giving effect to the Transactions), including updates to any such information as well may be reasonably requested by Silver (including so as a reasonable number to remain current pursuant to Rule 3-12 under Regulation S-X) (provided that to the extent any such financial information is contained in any Titanium SEC Documents, such inclusion shall constitute delivery to Silver and its financing sources hereunder and consent by Titanium and its Subsidiaries to use of meetings with Debt Financing Sourcessuch information); (iii) providing customary information cause Titanium’s independent accountants to prepare and assistance reasonably necessary to assist Parent and its counsel deliver “comfort letters,” dated the date of each final offering document used in connection with obtaining the customary legal opinions required to be any securities offering by Silver (with appropriate bring-down comfort letters delivered on each closing date of any such offering, including in connection with the Debt Financing; exercise of an option to purchase additional securities of Silver), subject to and in compliance with professional standards; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing provide customary representation letters to execute and deliver any documentation Titanium’s independent accountants in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption delivery of any corporate resolutions or actions prior to the Closing Date; such “comfort letters;” (v) furnishing a certificate cause Titanium’s independent accountants to provide consent to use of a financial officer their audit reports in materials relating to such financing in respect of the Company Transactions, including SEC filings and offering memoranda that include or incorporate Silver’s consolidated financial information and their reports thereon in accordance with respect to solvency matters in a normal customary form required to consummate the Debt Financing as of the Closing Datepractice; and (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all provide customary documentation and other information with respect to the Company required by regulatory authorities that financing sources reasonably determine is necessary under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation regulations to the PATRIOT Act, and in each case, extent requested by the Debt Financing Sources in writing at least ten Business Days business days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing DateClosing; provided, however, that notwithstanding (1) none of the foregoing, (i) nothing herein shall require the Company, its Subsidiaries Titanium Parties or any of their respective Representatives Subsidiaries shall be required to take pay any action that would be effective fees prior to the Closing (other than as expressly set forth reasonable out of pocket expenses promptly reimbursed by Silver hereunder on demand) or incur any other liability in this Section 6.17) or, in connection with any financing until the good faith judgment occurrence of the Company Closing, (2) none of the Titanium Parties or any of its Subsidiariestheir respective Subsidiaries shall be required to execute or deliver any documents or take any action relating to any financing that is not contingent upon the Closing, interfere unreasonably (3) no Representative of the Titanium Parties or any of their respective Subsidiaries shall be required to take any action that would reasonably be expected to result in or cause any personal liability in their personal capacity on the part of any Representative that is an individual or, to the extent not subject to reimbursement or indemnification by Silver hereunder, any other liability on the part of any Representative, (4) no action shall be required to the extent such action could reasonably be expected to cause any representation or warranty or covenant contained in this Agreement to be breached, (5) no action shall be required to the extent that it could reasonably be expected to conflict with the business or operations Organizational Documents of any of the Company, jeopardize the health and safety of any employee of the Company Titanium Parties or any of its their respective Subsidiaries in light of COVID-19 or any COVID-19 MeasuresApplicable Law or could reasonably be expected to result in a violation or breach of, or a default (with or without notice, lapse of time, or both) under, any contract to which any of the Titanium Parties or any of their respective Subsidiaries is a party or is bound by, (6) would require any of the Titanium Parties or any of their respective Subsidiaries or any of their Representatives to provide access to or disclose information that the Titanium determines would jeopardize any attorney-client or other legal privilege of any Titanium Party or any of their respective Subsidiaries and (7) no action shall be required to the extent such action could reasonably be expected to cause any condition to the Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of Agreement. Silver hereby acknowledges and agrees that the Company or its Subsidiaries to incur any liability or cause any breach obtaining of any Applicable Law, (ii) the Company shall financing is not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior a condition to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement).
Appears in 2 contracts
Samples: Joint Venture Operating Agreement (Taubman Centers Inc), Joint Venture Operating Agreement (Simon Property Group L P /De/)
Financing. The Companies understand that the Purchaser intends to finance the Purchase Price in part through a public offering or private placement in Canada and elsewhere (athe "Financing") Prior to by the ClosingPurchaser or one or more affiliates of the Purchaser (together, the Company shall use "Issuers"). The Companies will cooperate with and provide all reasonable best effortsassistance to, and shall cause its Subsidiaries to use reasonable best efforts, and shall use reasonable best efforts to will cause their respective affiliates and auditors to cooperate with and provide all reasonable assistance to, the Issuers and their Subsidiaries’ respective Representatives, auditors and other professional advisors in each case, with appropriate seniority and expertise in order to enable the good faith judgement Issuers to satisfy the requirements of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, applicable securities laws in connection with arrangingany Financing, syndicating, consummating and obtaining the Debt Financing under and including participating in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: due diligence sessions. The Purchaser shall bear (i) assisting in all reasonable fees of the preparation Companies' auditors for such assistance to the extent such assistance involves work not otherwise required of a confidential information memorandum and other customary marketing materials to be used or requested by the Companies under applicable SEC rules, including in connection with the marketing issuance of the Debt Financing Proxy Statement or the other transactions contemplated hereby, and ratings agency presentations and delivering customary representation and authorization letters (ii) any reasonable out-of-pocket expenses of the Companies or their affiliates in connection therewith; (ii) upon reasonable prior notice . The Companies acknowledge and at times agree that such cooperation will require the Companies, among other things, to be reasonably agreed, participation of representatives of senior management of prepare and provide to the Company (which participation may be by videoconference) Issuers for inclusion in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered any prospectus or other disclosure document prepared in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause i) audited financial statements (ivconsolidated or combined where appropriate and prepared in accordance with U.S. generally accepted accounting principles ("U.S. GAAP")) of the proviso below) Subsidiaries and the Business for the year ended December 31, 2000 and any quarterly interim statements for periods ending after December 31, 2000, including any customary closing officer’s certificates separate notes reconciling the differences between U.S. GAAP and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) the principles stated in the Handbook of the Company Canadian Institute of Chartered Accountants and (ii) other information concerning the Subsidiaries and the Business. The Purchaser understands and acknowledges that its Subsidiariesobligations under this Agreement, and taking corporate action to authorize the borrowing and guarantees of the Debt Financingincluding, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required without limitation, its obligation to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsSale, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full not conditioned on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires financing referred to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company 5.16 or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)financing.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Keyport Life Insurance Co), Stock Purchase Agreement (Liberty Financial Companies Inc /Ma/)
Financing. (a) While Purchaser may pursue, after the Contingency Date, financing and/or an equity investment in connection with Purchaser’s purchase under this Agreement, Purchaser’s obligation to close hereunder shall not be contingent upon the availability of and/or closing on any financing and equity investment. Prior to the Closing, the Company shall use reasonable best efforts, Purchaser agrees to keep and maintain in strict confidence (and shall cause instruct its Subsidiaries consultants, Affiliates, prospective lenders and prospective investors to use reasonable best effortskeep and maintain in strict confidence) all information related to the Subject Property which is generated by or on behalf of Purchaser or delivered to Purchaser or its consultants by Seller or its representatives, including, without limitation, all books, records, reports, surveys, studies, plans, assessments, leases, licenses, agreements and shall use reasonable best efforts other documents. The foregoing restrictions do not apply to cause their and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise information in the good faith judgement public domain as a result of lawful disclosure, or if disclosure is required under applicable laws, including, without limitation, governmental regulatory, disclosures, tax and reporting requirements. Purchaser shall provide to Seller (at no cost to Seller) true and complete copies of all reports, test results, surveys and other results of its Tests relating to the physical condition and/or other attributes of the CompanySubject Property (i.e., at Parent’s sole cost and expensesurveys, environmental reports, zoning reports, property condition reports) obtained by Purchaser which are prepared by third parties promptly following any election by Purchaser to terminate this Agreement. Any such items provided by Purchaser shall be without representation or warranty by Purchaser as to the accuracy, completeness or reliability of same. In no event shall Purchaser be obligated to provide to Parent all cooperation reasonably requested Seller any appraisals, opinions of value or financial analyses performed by Parent, or for Purchaser in connection with arrangingits investigations of the Subject Property. On or before the Contingency Date, syndicatingPurchaser shall notify Seller in writing if the Conditions Precedent in subsections 3(a), consummating (b) and obtaining (c) have not been satisfied or waived by Purchaser, in Purchaser’s sole and absolute discretion. If Purchaser so timely notifies Seller or if Purchaser fails to notify Seller on or prior to the Debt Financing under Contingency Date as to whether the Conditions Precedent in subsections 3(a), (b), and (c) have or have not been satisfied or waived by Purchaser, then this Agreement shall terminate and the Xxxxxxx Money shall be returned to Purchaser provided Purchaser and Seller shall execute any document reasonably required by the other party to evidence such termination. Upon such termination, neither party will have any further rights or obligations (other than the indemnity obligations of Purchaser set forth in Section 3(b) and the indemnity obligations of Purchaser set forth in Section 13 of this Agreement, and any other obligations that specifically survive the termination hereof in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement), which obligations shall survive any such termination) regarding this Agreement.
Appears in 1 contract
Financing. (a) Prior to the Closing, the Company shall use reasonable best efforts, provide and shall cause its Subsidiaries each Subsidiary of the Company and their respective Representatives to use reasonable best effortsprovide, and each Selling Party shall use reasonable best efforts to cause their the Company and each Subsidiary of the Company and their Subsidiaries’ respective RepresentativesRepresentatives to provide, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing Debt Financing reasonably requested by the Purchasing Parties, provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Debt Financing Selling Parties and ratings their Subsidiaries (including the Company and its Subsidiaries), including (i) participation in meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, (ii) assisting with the preparation of materials for rating agency presentations and delivering customary representation offering documents, private placement memoranda, bank information memoranda, prospectuses, business projections and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions similar documents required to be delivered in connection with the Debt Financing; (iv) permitting officers , including execution and delivery of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation customary representation letters in connection with the Debt Financing bank information memoranda, (subject to subclause (iviii) executing and delivering, as of the proviso below) including Closing, any customary closing officer’s pledge and security documents, other definitive financing documents, other certificates and secretary’s certificates prepared or documents as may be reasonably requested by Parent the Purchasing Parties (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer the Chief Financial Officer of the Company with respect to solvency matters matters) and otherwise reasonably facilitating the pledging of collateral, (iv) as promptly as practical, furnishing the Purchasing Parties and their financing sources with financial and other pertinent information regarding the Company as may be reasonably requested by the Purchasing Parties, including all related financial statements, and financial data and other information of the type and form customarily included in a customary form required private placements under Rule 144A under the Securities Act to consummate the Debt Financing as offering(s) of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested debt securities contemplated by the Debt Financing Sources in writing at least ten Business Days prior to Commitments (the Closing Date; “Required Information”), (viiv) using reasonable best efforts to cooperate (y) obtain accountants’ comfort letters, accountants’ consents and legal opinions and (z) with Parent respect to satisfy any properties for which the conditions precedent Purchasing Parties’ lenders request surveys and/or mortgagee title insurance, using reasonable best efforts to obtain title insurance in customary form for commercial real estate transactions and providing the Purchasing Parties and their agents with reasonable access to the applicable properties in connection with the Purchasing Parties’ surveys, in either of clause (y) or (z), at the Purchasing Parties’ expense, as reasonably requested by the Purchasing Parties; (vi) permitting the prospective lenders involved in the Debt Financing that are within to identify and evaluate the control Company’s and its Subsidiaries’ assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements; (vii) permitting the Purchasing Parties to perform an appraisal of the inventory of the Company or and its SubsidiariesSubsidiaries customary for the type of financing contemplated by the Debt Financing; (viii) providing such without limitation of Section 5.06, using reasonable best efforts to obtain waivers, consents, estoppels and approvals from other reasonably available financial parties to Company Leases and Contracts and to arrange discussions among the Purchasing Parties and their financing sources with other information with respect parties to material leases, encumbrances and contracts, and (ix) taking all reasonable actions necessary to permit the consummation of the Financing contemplated by the Financing Commitments; provided, that none of the Selling Parties or any of their Subsidiaries (including the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other similar fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing Financing. The Purchasing Parties shall, Table of Contents promptly upon request by the Seller Parent, reimburse Seller Parent for all reasonable out-of-pocket costs incurred by the Selling Parties or provide or agree to provide any indemnity of their Subsidiaries (including the Company and its Subsidiaries) in connection with such cooperation, including any payments or concessions made in connection with clauses (viii) and (ix) above. The Purchasing Parties shall indemnify and hold harmless the Selling Parties, their Subsidiaries (including the Company and its Subsidiaries) and their respective Representatives from and against any and all losses suffered or incurred by them in connection with (1) any action taken by them at the request of the Purchasing Parties pursuant to this Section 5.04 or in connection with the arrangement of the Debt Financing or and (2) any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents information utilized in connection therewith (other than information provided by the Selling Parties and their Subsidiaries (including the Company and its Subsidiaries)). All non-public or otherwise confidential information regarding the Company obtained by the Purchasing Parties pursuant to this Section 5.04 shall be kept confidential in accordance with the Confidentiality Agreement; provided, however, that the Purchasing Parties and their Representatives shall be permitted to disclose information as necessary and consistent with customary representation and authorization letters), including any other certificates or documents practices in connection with the Debt Financing, except for any execution of documents that are conditioned Financing upon the Closingprior written consent of Seller Parent (such consent not to be unreasonably withheld, (v) neither conditioned or delayed). The Selling Parties shall cause the Company nor any of and its Subsidiaries (nor and their respective governing bodies) shall Representatives to update, when requested by the Purchasing Parties, any such Required Information to be required included in an offering document to take be used in connection with such Financing in order to ensure that such Required Information does not contain any corporate actions prior untrue statement of a material fact or omit to the Closing to permit the consummation of the Debt Financing (except for state any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required material fact necessary in order to make any certifications that it does the statements contained therein not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)misleading.
Appears in 1 contract
Financing. (a) Prior to the Closing, the Company Seller shall use reasonable best efforts, and shall cause its Subsidiaries provide to use reasonable best effortsBuyer, and shall use its commercially reasonable best efforts to cause their the respective officers, employees and their Subsidiaries’ respective Representativesadvisors, in each caseincluding legal and accounting employees and advisors, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, Seller to provide to Parent Buyer, all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used Buyer in connection with the marketing of the Debt Financing Financing, including (i) participation in meetings, presentations, road shows, due diligence sessions and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; sessions with rating agencies, (ii) upon reasonable prior notice and at times to be reasonably agreed, participation assisting with the preparation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and materials for rating agency meetingspresentations, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary offering documents, private placement memoranda, bank information memoranda, prospectuses and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions similar documents required to be delivered in connection with the Debt Financing; , (iviii) permitting officers of the Company or any of assisting Buyer in its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing ability to execute and deliver any documentation pledge and security documents, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably required of Buyer, (iv) furnishing Buyer and their Financing sources with financial and other pertinent information regarding the Business and the Transferred Assets as may be reasonably requested by Buyer, including all financial statements and financial data for the fiscal years ended 2004 and 2005 and the quarterly periods during each of 2005, 2006 and any quarterly periods ending prior to the Closing during 2007 of the type and form customarily included in syndicated bank financings and auditable carve-out divisional financial statements for the Business for fiscal year 2006 on the same basis as the Audited Carve-Out Financial Statements and for the auditing of such financial statements by Seller’s independent auditors, to consummate the syndication contemplated by the Debt Financing Commitments at the time during Seller’s fiscal year such syndication will be made, (v) furnishing the financial statements described in paragraph 5 of Exhibit C of the Debt Financing Commitments promptly upon their becoming available, (vi) to the extent Seller learns of any material inaccuracy with respect to any financial statements contemplated in (v) above, Seller shall correct and refurnish such financial statements described in paragraph 5 of Exhibit C of the Debt Financing Commitments, (vii) using commercially reasonable efforts to enable Buyer to obtain accountants’ comfort letters, legal opinions, certificates, surveys and title insurance as reasonably requested by Buyer, (viii) taking all actions necessary to (A) permit the prospective lenders involved in the Financing to evaluate the current assets included in the Transferred Assets or the assets of the Transferred Subsidiaries, and the cash management and accounting systems, policies and procedures associated therewith for the purposes of establishing collateral arrangements and (B) assist Buyer to establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates foregoing and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of taking all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing reasonably necessary to permit the consummation of the Debt Financing (except and to permit the proceeds thereof to be made available to Buyer and Seller. Buyer shall, promptly upon request by Seller, reimburse Seller for any corporate actions that are conditioned upon the Closing)all reasonable, and (vi) no Representative of the Company documented out-of-pocket costs incurred by Seller or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) connection with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)Seller’s obligations hereunder.
Appears in 1 contract
Samples: Lease Agreement (Eastman Kodak Co)
Financing. (ai) Prior to the ClosingSeller Parent, Seller and the Company shall use reasonable best effortsshall, and shall cause its Subsidiaries to use reasonable best efforts, and shall use reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement of the Company’s Subsidiaries, at Parent’s sole cost accountants, consultants, legal counsel, officers and expenseemployees, to provide to Buyer Parent all and Buyer and potential financing sources cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Buyer Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute Buyer and deliver any documentation potential financing sources in connection with the Debt Financing (subject to subclause (iv) including, for the avoidance of the proviso below) including doubt, any customary closing officer’s certificates issuance of notes or exchange notes and secretary’s certificates prepared by Parent any incurrence of asset-based loans and commitments (including certification of organizational authorizationassistance with collateral audits and due diligence examinations customary for asset-based financings)) and in connection with Buyer Parent’s compliance with SEC and New York Stock Exchange reporting obligations, organizational documents which cooperation shall be limited to (A) causing, upon reasonable advance notice by Buyer, appropriate officers and good standing certificates) employees of the Company and its SubsidiariesSubsidiaries to participate telephonically in a reasonable number of meetings, due diligence sessions and drafting sessions related to any Debt Financing, giving due consideration to the needs of such individual to operate their business, (B) reviewing and commenting upon materials for rating agency presentations, offering documents, roadshow presentations, private placement memoranda, offering memoranda, bank information memoranda and similar documents required in connection with the Debt Financing and using commercially reasonable efforts to work with Buyer in providing “backup” support for any statements related to the Company and its Subsidiaries included in any of the foregoing, (C) providing information relating to the Company and its Subsidiaries to the Debt Financing Sources and to any underwriter, initial purchaser or placement agent in connection with the Debt Financing and their respective counsel in substantially the form previously provided to Buyer and Buyer Parent, (D) furnishing Buyer and its Debt Financing Sources as promptly as practical with GAAP-compliant (1) audited consolidated financial statements for the Company for 2008, 2009 and 2010 (including an audit opinion for each period that has not been withdrawn and for which the Company has received no notice that withdrawal is under consideration), (2) unaudited interim period financial statements for the Company for the nine months ending September 30, 2010 and 2011 which have been reviewed by the independent accountant for the Company as provided in the Statement on Accounting Standards No. 100 and (3) such additional annual audited or unaudited interim financial statements that (i) would be necessary for the financial statements delivered to Buyer and its Debt Financing Sources pursuant to this clause (D) to be sufficiently current on each day during the Marketing Period to satisfy the requirements of Rule 3-12 of Regulation S-X to permit a registration statement using such financial statements to be declared effective by the SEC on the last day of the Marketing Period and (ii) that meet the requirements applicable to the financial statements delivered pursuant to subclauses (1) and (2) of this clause (D) (all audited annual and unaudited interim period financial statements delivered pursuant to this clause (D) shall comply with GAAP, and taking corporate action the Company shall not have Knowledge of any facts which may require the restatement of such financial statements for such financial statements to authorize comply with GAAP) (for purposes of clarification, on and after February 12, 2012 the borrowing unaudited interim financial statements of Seller will no longer be current and guarantees audited financial statements of Seller as of December 31, 2011 will need to be delivered pursuant to this provision), (E) both before the Closing Date and, to the extent reasonably necessary to allow Buyer or Buyer Parent to consummate a securities offering or comply with SEC requirements, after the Closing Date, providing appropriate representations in connection with the preparation of financial statements and other financial data of the Company and its Subsidiaries and requesting accountants’ consents in connection with the use of the Company’s financial statements in offering documents, prospectuses, current reports on Form 8-K and other documents which are filed with the SEC, (F) using commercially reasonable efforts to assist Buyer in connection with the preparation of pro forma financial information and financial statements to the extent required by SEC rules and regulations or necessary (or required by Buyer’s financing sources) to be included in any offering documents, (G) using commercially reasonable efforts to obtain customary accountants’ comfort letters (including “negative assurance” comfort and including bring down procedures for and concerning financial information for periods up to five (5) Business Days prior to the closing date of the Debt Financing) to the extent reasonably necessary to allow Buyer or Buyer Parent to consummate a securities offering or comply with SEC requirements; (H) using commercially reasonable efforts to facilitate the pledging of collateral in connection with any Debt Financing, provided including providing any available surveys or title insurance policies and other documentation related to real estate collateral to the extent available to the Company (it being understood that any of the foregoing Company shall not require the adoption of be required to execute any corporate resolutions or actions Contracts prior to the Closing Date; ), (vI) furnishing a certificate using commercially reasonable efforts to assist Buyer and Buyer’s auditors in connection with Buyer’s efforts to make Seller’s historical financial statements compliant with Regulation S-X and usable in SEC filings and in offering memoranda used in the Debt Financing, (J) reviewing and commenting on Buyer’s draft of a business description and “Management’s Discussion and Analysis” of Seller’s financial officer of the Company with respect statements to solvency matters be included in a customary form required offering documents related to consummate the Debt Financing as of the Closing Date; Financing, and (viK) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with providing all documentation and other information with respect to about the Company and each of its Subsidiaries as is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, regulations including without limitation the PATRIOT USA Patriot Act. Nothing in this Section 4.3(e)(i) shall be construed as requiring Seller Parent, and in each caseSeller, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Companyaccountants, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measuresconsultants, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directorscounsel, officers or employees, to (iiiX) neither participate in road shows or sessions with rating agencies; (Y) represent or warrant that the financial statements provided pursuant to Section 4.3(e)(i)(D)satisfy the requirements of Regulation S-X, Form S-1 or any other requirements of the Securities Act, the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereto, or any other rule or regulation promulgated by the SEC (it being understood that such financial statements still comply with GAAP); or (Z) to use any efforts in excess of commercially reasonable efforts to cause the independent accountant for the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for action or issue any corporate actions that are conditioned upon the Closing)consent, and (vi) no Representative of the Company comfort letter or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)other document.
Appears in 1 contract
Financing. (a) Prior to the Closing, the Company Sellers shall use reasonable best efforts, and shall cause its Subsidiaries to use reasonable best effortsprovide, and shall use reasonable best efforts to cause their respective representatives and their Subsidiaries’ respective Representativesadvisors, including legal, tax, regulatory and accounting advisors, to provide, customary cooperation in connection with the arrangement of the Financing (provided that, for purposes of this Section 5.13, the Financing shall include, and the obligations under this Section 5.13 shall also be applicable with respect to, required SEC reporting obligations of Purchaser subsequent to the Closing, and any offering of “high yield” debt financing consummated, in each case, with appropriate seniority and expertise in the good faith judgement case within six months of the CompanyClosing Date), at Parent’s sole cost and expense, to provide to Parent all cooperation as may be reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”)Purchaser, including: (i) causing the Acquired Companies and Subsidiaries to execute and deliver customary guarantee, pledge and security documents or other definitive financing documents or other certificates, legal opinions and documents as may be reasonably requested by the Purchaser, provided, however, that no obligation of any of the Acquired Companies or Subsidiaries, under any such document or agreement, as applicable, is effective until the Closing; (ii) furnishing the Purchaser and its financing sources with the most recent combined financial statements, financial data and other information of the Acquired Companies reasonably requested by the Purchaser or its financing sources in connection with the Financing; (iii) assisting any financing sources in the preparation of a confidential information memorandum and other (A) one or more customary marketing materials to be used offering documents in connection with the marketing Financing in form and substance that is customary for registration statements filed with the SEC and (B) customary materials with respect to the Acquired Companies for inclusion in rating agency presentations; (iv) using reasonable efforts to obtain accountants’ comfort letters as reasonably requested by the Purchaser; (v) taking such corporate actions (subject to the occurrence of Closing) reasonably required to permit the consummation of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewithFinancing; (iivi) upon reasonable prior notice and at times to be cooperating reasonably agreed, participation of representatives of senior management with the financing sources’ due diligence of the Company Acquired Companies and their Business and (which participation may be vii) taking other actions reasonably requested by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and the Purchaser and/or its counsel with obtaining the customary legal opinions required to be delivered financing sources in connection with the Debt Financing; provided, however, that, notwithstanding anything in this Agreement to the contrary, (ivx) permitting officers such requested cooperation shall not unreasonably interfere with the ongoing operations of the Company Sellers, the Acquired Companies or the Subsidiaries and (y) none of the Sellers at any time or the Acquired Companies or the Subsidiaries prior to the Closing shall be required to (1) pay any commitment or other fee, (2) incur any liability or obligation under any indenture, loan agreement or any of its Subsidiaries who will be officers of the Company related document or any of its Subsidiaries after Closing other agreement or document related to execute and deliver the Financing or (3) incur any documentation other liability or obligation in connection with the Debt Financing. Any information provided by the parties hereto in connection with the Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates shall be prepared in good faith and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption be free of any corporate resolutions material misstatements or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent omissions. The Purchaser and Dycom shall promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested upon request by the Debt Financing Sources Sellers, reimburse the Sellers for all reasonable and documented out-of-pocket costs incurred by the Sellers in writing at least ten Business Days prior to connection with cooperation provided for in this Section 5.13 and execute, deliver and provide such documentation as the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources Sellers may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)therewith.
Appears in 1 contract
Financing. (a) Prior to the Closing, the Company shall use reasonable best effortsshall, and shall cause its Subsidiaries to use reasonable best effortsto, and shall use reasonable best efforts to cause their the respective officers, employees, consultants and their Subsidiaries’ respective Representativesadvisors, in each caseincluding legal and accounting advisors, with appropriate seniority and expertise in the good faith judgement of the CompanyCompany and its Subsidiaries to, at Parent’s sole cost and expense, to provide to Parent all such cooperation as may be reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used Parent in connection with the marketing arrangement of the Debt Financing Financing, including (i) participation in meetings, presentations, road shows, due diligence sessions and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; sessions with rating agencies, (ii) upon reasonable prior notice assisting with the preparation of financial information and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and other materials for rating agency meetingspresentations, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary offering documents, private placement memoranda, registration statements, bank information memoranda, prospectuses, business projections and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions similar documents required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing and providing all representation letters and other materials requested by its independent accountants for the preparation and use of such financial information as contemplated by this Section 6.9(a), (subject iii) causing its independent accountants to subclause provide assistance and cooperation to Parent, including participating in drafting sessions and accounting due diligence sessions, assisting in the preparation of any pro forma financial statements to be included in the documents referred to in clause (ii) above, providing consent to Parent to use their audit reports relating to the Company and providing any necessary "comfort letters", (iv) of assisting in the proviso below) negotiation of, and executing and delivering, definitive financing documents, including any customary closing officer’s certificates pledge and secretary’s certificates prepared security documents, and certificates, legal opinions, management representation letters or other documents, to the extent reasonably requested by Parent (including certification certificates of organizational authorizationthe chief financial officer of the Company or any Subsidiary with respect to solvency matters and consents of accountants for use of their reports in materials relating to the Debt Financing) and otherwise reasonably facilitating the pledging of collateral, organizational documents (v) providing reasonable access by Parent and good standing certificatesany Debt Financing or Alternative Financing sources, and their respective officers, employees, consultants and advisors (including legal, valuation, and accounting advisors) to the books and records, properties, officers, directors, agents and Representatives of the Company and its Subsidiaries, (vi) obtaining surveys and title insurance reasonably requested by Parent, (vii) as promptly as practicable, furnishing to Parent and its Debt Financing or Alternative Financing sources with all financial and other pertinent information regarding the Company and its Subsidiaries reasonably requested by Parent to consummate the Debt Financing, including all historical and pro forma financial statements and financial data regarding the Company and its Subsidiaries, in each case of the scope, type and form (A) that is required by the Securities Act (including Regulations S-K and S-X thereunder and other accounting rules and regulations of the SEC) for inclusion in a registration statement to be filed with the SEC and (B) that is otherwise customarily included in private placement memoranda relating to private placements under Rule 144A of the Securities Act and bank information memoranda, in each case at the time during the Company's (or such segment's) fiscal year such offerings will be made (all such information described in this clause (vii), the "Required Financial Information"), (viii) taking all actions necessary to (A) permit the prospective lenders involved in the Debt Financing to evaluate the Company's assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (B) establish bank and other accounts and blocked account Contracts and lock box arrangements in connection with the foregoing, and (ix) taking all corporate action actions necessary to authorize the borrowing and guarantees permit consummation of the Debt Financing; provided, provided that any of the foregoing nothing herein shall not require the adoption of any corporate resolutions or actions prior such cooperation to the Closing Date; (v) furnishing a certificate of a financial officer of extent it would interfere unreasonably with the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control business or operation of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect . The Company hereby consents to the Company use of its and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents ' logos in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Merger (M & F Worldwide Corp)
Financing. (a) Prior From the date hereof until the earlier of (i) the Effective Date, and (ii) the termination of this Agreement pursuant to the ClosingArticle VII hereof, the Company shall use reasonable best effortsprovide Parent and Acquisition Sub such cooperation as may be reasonably requested in an effort to implement and make effective, as of the Effective Date, the financing provided for in the Commitment Letters and/or any Alternative Financing (as defined below) and/or any other financing proposed by Parent and Acquisition Sub in connection with the Transactions (individually, a “Financing”, and shall cause its Subsidiaries to use collectively, the “Financings”), including using reasonable best efforts, and shall use reasonable best efforts to cause their assist Parent and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority Acquisition Sub with: (i) the preparation by Parent and expertise Acquisition Sub of an information package (including a version that does not contain material non-public information); (ii) participating in the good faith judgement presentation by Parent and Acquisition Sub of such information package and related matters to prospective lenders, including by facilitating direct contact between the Company’s senior management and prospective lenders; (iii) paying and discharging on the Effective Date any Encumbrances under existing indebtedness, at Parent’s sole cost and expense, to provide to Parent all cooperation as may be reasonably requested by Parent; (iv) giving timely redemption and pre-payment notices, as applicable, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms refinancing of the Debt Financing Commitment Letter and/or arrangingCompany’s existing indebtedness, syndicatingas may be reasonably requested by Parent; (v) providing Parent at least three (3) days prior to the Effective Date, consummating with estimated outstanding balances, penalties, fees, per diems and obtaining related costs as may be required by Parent to effect the payment or prepayment of any Alternative Debt Financing outstanding indebtedness and related amounts on the Effective Date; (collectively, the “Debt Financing”), including: (ivi) assisting in the preparation by Parent and Acquisition Sub of an offering memorandum or private placement memorandum suitable for use in a confidential information memorandum customary “road show” for an offering of high-yield debt securities by the Company and other customary marketing materials to be used in connection with the marketing participation of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company and its Subsidiaries and representatives of the Parent in any such road show; (which participation may be by videoconferencevii) in a reasonable number of due diligence sessions, drafting sessions and the rating agency meetingsprocess, as well as a reasonable number of meetings with Debt Financing Sourcesreasonably requested by Parent; (iiiviii) providing the execution and delivery of a customary information purchase agreement and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any related documentation in connection with the Debt Financing (subject to subclause (iv) any offering of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Datehigh-yield debt securities; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement).
Appears in 1 contract
Samples: Arrangement Agreement
Financing. (a) Prior to the ClosingEffective Time, the Company shall use reasonable best effortsprovide, and shall cause its Subsidiaries to use reasonable best effortsto, and shall use its reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority including legal and expertise in the good faith judgement of the Company, at Parent’s sole cost and expenseaccounting, to provide to Parent all cooperation reasonably requested by Parent, Parent in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms arrangement of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”its Subsidiaries), including: including (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies, (ii) assisting with the preparation of materials for rating agency meetingspresentations, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary offering documents, private placement memoranda, bank information memoranda, prospectuses and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions similar documents required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall private placement memoranda or prospectuses in relation to high yield debt securities need not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required be issued by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries; provided further that, interfere unreasonably any such memoranda or prospectuses shall contain disclosure and financial statements with respect to the business Company or operations of the Surviving Corporation reflecting the Surviving Corporation and/or its Subsidiaries as the obligor, (iii) executing and delivering any pledge and security documents, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Parent (including a certificate of the Company, jeopardize the health and safety of any employee chief financial officer of the Company or any Subsidiary with respect to solvency matters and consents of accountants for use of their reports in any materials relating to the Debt Financing) and otherwise reasonably facilitating the pledging of collateral, (iv) furnishing Parent and its Subsidiaries Financing sources as promptly as practicable (and in light of COVID-19 or any COVID-19 Measuresevent no later than 25 Business Days prior to the End Date) with financial and other pertinent information regarding the Company as may be reasonably requested by Parent, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee including all financial statements and financial data of the Company or its Subsidiaries type required by Regulation S-X and Regulation S-K under the Securities Act and of the type and form customarily included in private placements under Rule 144A of the Securities Act to incur any liability or cause any breach consummate the offerings of any Applicable Lawdebt securities contemplated by the Debt Financing Commitments at the time during the Company's fiscal year such offerings will be made (the "Required Financial Information"), (iiv) using reasonable best efforts to obtain accountants' comfort letters, legal opinions, surveys and title insurance as reasonably requested by Parent, (vi) providing monthly financial statements (excluding footnotes) within the time frame, and to the extent, the Company prepares such financial statements, (vii) taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Financing to evaluate the Company's current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (B) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, (viii) entering into one or more credit or other agreements on terms satisfactory to Parent in connection with the Debt Financing immediately prior to the Effective Time; provided that, subject to taking the actions required by clause (ix) below, the Company shall not be required to disclose enter into any information to Parent or purchase agreement for any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment high-yield debt financing (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17bridge financing), (ix) or incur any other liability in connection with taking all corporate actions, subject to the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any occurrence of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing reasonably requested by Parent to permit the consummation of the Debt Financing (except for and the direct borrowing or incurrence of all of the proceeds of the Debt Financing, including any corporate actions that are conditioned upon high yield debt financing, by the Closing)Surviving Corporation immediately following the Effective Time, and (vix) no Representative assisting Parent with any presentation to the SEC with regard to the recording of the Merger as a recapitalization for financial reporting purposes in accordance with GAAP and cooperating in good faith with Parent, if so requested by Parent, in order to develop alternative means of recording the Merger as a recapitalization for financial reporting purposes in accordance with GAAP; provided that none of the Company or any of its Subsidiaries shall be required to make pay any certifications commitment or other similar fee or incur any other cost or expense that it does is not reasonably simultaneously reimbursed by Parent in good faith believe to be true. In addition, connection with the Company shall furnish Parent reasonably promptly (and, in any event, Debt Financing prior to the Closing) Effective Time. Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs incurred by the Company or its Subsidiaries in connection with such cooperation and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives for and against any and all losses suffered or incurred by them in connection with the financial statements identified in paragraphs 6 and 7 of Exhibit C arrangement of the Debt Financing Commitment Letter and any information utilized in connection therewith (other than information provided by the Company or the analogous provision Subsidiaries). The Company hereby consents to the use of its and its Subsidiaries' logos in any commitment letter for any Alternative connection with the Debt Financing (Financing; provided that such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the conditions set forth in such analogous provision Company or any of it Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries and its or their marks. All non-public or otherwise confidential information regarding the Company obtained by Parent, Merger Sub or their Representatives pursuant to this Section 7.10(a) shall be not more burdensome to kept confidential in accordance with the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Confidentiality Agreement).
Appears in 1 contract
Financing. (a) Prior to the Closing, the Company shall use reasonable best effortsSeahorse Parties shall, and shall cause its their Subsidiaries to use reasonable best effortsto, and shall use reasonable best efforts to cause their and their Subsidiaries’ respective RepresentativesRepresentatives to, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all and Merger Sub such cooperation reasonably requested by ParentParent that is necessary, in connection with arrangingproper, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company advisable or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation desirable in connection with the Debt Financing and the amendment to the Credit Agreement that permits the loans under the Credit Agreement to remain outstanding after the Effective Time on the terms contemplated by the Debt Financing Commitments (subject the “Amendment”), including (i) participating in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies and assisting Parent in obtaining ratings as contemplated by the Debt Financing and the Amendment; (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the Debt Financing and the Amendment, including execution and delivery of customary representation letters in connection with bank information memoranda; provided, that any such memoranda or prospectuses shall contain disclosure and financial statements with respect to subclause the Company or the Surviving Entity reflecting the Surviving Entity and/or its Subsidiaries as the obligor; (iviii) of as promptly as reasonably practical, furnishing Parent and its Debt Financing sources with financial and other information regarding the proviso below) including any customary closing officer’s certificates Company and secretary’s certificates prepared its Subsidiaries as may be reasonably requested by Parent (including certification in connection with Parent’s preparation of organizational authorizationpro forma financial statements), organizational documents including financial statements, financial data, projections, audit reports and good standing certificatesother information of the type required by Regulation S-X and Regulation S-K promulgated under the Securities Act for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt securities contemplated by the Company Debt Financing Commitments, assuming that such offering(s) were consummated at the same time during the Company’s fiscal year as such offering(s) of debt securities will be made, or as otherwise reasonably required in connection with the Debt Financing and the transactions contemplated by this Agreement or as otherwise necessary in order to assist in receiving customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt securities contemplated by the Debt Financing Commitments (all such information in this clause (iii), the “Required Information”); (iv) using reasonable best efforts to obtain customary accountants’ comfort letters, appraisals, surveys, engineering reports, environmental and other inspections (including providing reasonable access to Parent and its Subsidiariesagents to all Owned Real Property for such purposes; provided, that such access does not include the right to conduct any invasive soil or groundwater sampling without the Company’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed), title insurance and taking corporate action other documentation and items relating to authorize the borrowing and guarantees of the Debt FinancingFinancing and the Amendment as reasonably requested by Parent and, provided that any of the foregoing shall not require the adoption of any corporate resolutions if requested by Parent or actions prior Merger Sub, to the Closing Datecooperate with and assist Parent or Merger Sub in obtaining such documentation and items; (v) furnishing a certificate of a using its reasonable best efforts to provide monthly financial officer statements (excluding footnotes) within fifteen (15) days of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as end of each month prior the Closing Date; (vi) furnishing Parent promptly (executing and in delivering, as of the Effective Time, a certificate of the Chief Financial Officer of the Company or any event at least five Business Days prior to the Closing Date) with all documentation and other information Subsidiary with respect to the Company required by regulatory authorities under applicable “know your customer” solvency matters and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and consents of accountants for use of their reports in each case, requested by any materials relating to the Debt Financing Sources and the Amendment and reasonably facilitating the pledging or the re-affirmation of the pledge of collateral (including cooperation in writing at least ten Business Days prior to connection with the Closing Datepay-off of existing indebtedness and the release of related Liens); (vii) taking commercially reasonable actions necessary to (A) permit the prospective lenders involved in the Debt Financing and the Amendment to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements as of the Effective Time and (B) assist Parent to establish or maintain, effective as of the Effective Time, bank and other accounts and blocked account agreements and lock box arrangements in connection with the Debt Financing and the Amendment; (viii) using reasonable best efforts to cooperate with assist Parent to satisfy the conditions precedent obtain waivers, consents, estoppels and approvals from other parties to the Debt Financing that are within the control material leases, encumbrances and contracts to which any Subsidiary of the Company or its Subsidiariesis a party and to arrange discussions among Parent, Merger Sub and their financing sources with other parties to material leases, encumbrances and contracts as of the Effective Time; (viiiix) providing such other taking all corporate actions, subject to the occurrence of the Effective Time, reasonably available financial requested by Parent that are necessary or customary to permit the consummation of the Amendment and other information the Debt Financing, including any high yield financing, and to permit the proceeds thereof, together with respect to the cash at the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing Subsidiaries (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statementsnot needed for other purposes), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing made available to allow for the payoff, discharge and termination in full Company on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that to consummate the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing DateMerger; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment none of the Company or any of its Subsidiaries, interfere unreasonably or any of their respective officers, advisors or representatives shall incur any liability in connection with the business Financing prior to the Effective Time; (x) executing the Amendment upon the written request of Parent, on or operations prior to the Effective Time (it being understood that no portion of the Amendment, other than the waiver of any default under section 9(k) of the Credit Agreement (change in control default) that may occur by virtue of the Requisite Unitholder Vote by the requisite lenders thereunder (the “Change of Control Waiver”), will become effective prior to the Effective Time) and (xi) using commercially reasonable efforts to assist Parent and Merger Sub to (1) deliver to the arrangers under the Debt Financing on or prior to January 11, 2010, a Confidential Information Memorandum for the Amendment and other customary marketing material to be used in connection with the syndication of the Amendment and (2) obtain a corporate family rating and ratings for the amended credit facilities from each of S&P and Xxxxx’x by January 11, 2010. The Company will take reasonable best efforts to periodically update any such Required Information provided to Parent pursuant to clause (iii) of the foregoing sentence as may be necessary such that such Required Information does not contain any untrue statement of material fact or omit to state any material fact necessary in order to make the statements contained therein not misleading. For the avoidance of doubt, Parent may, to most effectively access the financing markets, require the cooperation of the Company under this Section 5.11(a) at any time, and from time to time and on multiple occasions, between the date hereof and the Effective Time. In addition, the Company agrees that it will continuously supplement and keep current the Required Information and provide any supplements to Parent so that Parent may most effectively access the financing markets. The Company shall timely file Company SEC Reports with the SEC in accordance with Law. If the Effective Time does not occur, the Company, its Subsidiaries and their respective officers, advisors and Representatives shall be indemnified and held harmless by Parent for and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the Debt Financing (other than to the extent such losses arise from the misconduct of the Company, jeopardize the health any of its Subsidiaries or their respective officers, advisors and safety of representatives) and any employee of information utilized in connection therewith (other than information provided by the Company or any of its Subsidiaries Subsidiaries). The Company hereby consents to the use of its and its Subsidiaries’ logos in light of COVID-19 connection with the Debt Financing and the Amendment; provided, that such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied of its Subsidiaries. All non-public or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of confidential information regarding the Company or its Subsidiaries to incur any liability obtained by Parent, Merger Sub or cause any breach of any Applicable Lawtheir respective officers, (ii) 57 advisors or representatives shall be kept confidential in accordance with the Confidentiality Agreement. Notwithstanding the foregoing, the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree Amendment to provide make any indemnity in connection with any Debt Financing payment to the lenders, arrangers or any of other persons under the foregoing that would be effective Credit Agreement prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)Effective Time.
Appears in 1 contract
Financing. (a) Prior to the ClosingEffective Time, the Company shall use reasonable best effortsprovide, and shall cause its Subsidiaries to use reasonable best effortsSubsidiaries, and shall use commercially reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority including legal and expertise in the good faith judgement of the Company, at Parent’s sole cost and expenseaccounting, to provide to Parent provide, all cooperation requested by Parent in connection with the Financing and the other transactions contemplated by this Agreement, including (i) participation in meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the Financing, (iii) furnishing Parent and its Financing sources as promptly as practicable with financial and other pertinent information regarding the Company as may be reasonably requested by Parent, including all financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act and of type and form customarily included in connection with arranging, syndicating, consummating and obtaining private placements under Rule 144A of the Securities Act to consummate the offerings of debt securities contemplated by the Debt Financing under and Letters at the time during the Company's fiscal year such offerings will be made (the "Required Information"), (iv) satisfying the conditions precedent to the availability of the Financing as set forth in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing Letters (collectively, to the “Debt Financing”extent the satisfaction of such conditions requires actions by or cooperation of the Company), including: (iv) assisting using commercially reasonable efforts to provide monthly financial statements (excluding footnotes) within 25 days of the end of each month prior to the Closing Date, and (vi) taking all actions necessary to permit the prospective lenders involved in the preparation Financing to evaluate the Company's current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of a confidential information memorandum and other customary marketing materials establishing collateral arrangements. The Company hereby consents to be used in connection with the marketing use of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent its and its counsel with obtaining the customary legal opinions required to be delivered Subsidiaries' logos in connection with the Debt Financing; . The Company shall use commercially reasonable efforts to take the following actions at the Closing: (ivA) permitting officers executing and delivering any pledge and security documents, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Parent (including a certificate of the chief financial officer of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company Subsidiary with respect to solvency matters in a customary form required to consummate the Debt Financing as and consents of the Closing Date; (vi) furnishing Parent promptly (and accountants for use of their reports in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent materials relating to the Debt Financing that are within Financing) and otherwise reasonably facilitating the control pledging of the Company or its Subsidiaries; collateral, (viiiB) providing such other obtaining accountants' comfort letters, legal opinions, surveys and title insurance as reasonably available financial requested by Parent, (C) establishing bank and other information with respect to the Company accounts and its business as Parent or its Debt Financing Sources may reasonably request blocked account agreements and lock box arrangements in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiariesforegoing, and their respective Representatives be required to provide any pro forma financial information or statements), (ixD) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of taking all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing necessary to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon and to permit the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe proceeds thereof to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior made available to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Myers Industries Inc)
Financing. (a) Prior to the Closing, the Sellers and the Company shall use reasonable best effortswill, and shall will cause its Subsidiaries to use reasonable best efforts, the other Acquired Companies and shall use reasonable best efforts to cause their and their Subsidiariesthe other Acquired Companies’ respective Representativesofficers, in each caseemployees and advisors, with appropriate seniority including legal, financial and expertise in the good faith judgement of the Companyaccounting advisors to, at Parent’s sole cost and expense, to provide to Parent all the Purchaser such cooperation as is reasonably requested by Parent, the Purchaser in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing debt or equity financing (collectively, the “Debt Financing”) arranged by the Purchaser in connection with the transactions contemplated by this Agreement (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Acquired Companies), including: including (i) assisting in preparation for and participation in customary marketing efforts with prospective lenders, investors and ratings agencies, (ii) assisting the Purchaser and its financing sources in the preparation of a confidential (A) customary offering documents, private placement memoranda, bank information memorandum memoranda, rating agency materials, roadshow presentations, prospectuses, other marketing materials and definitive documents for any of the Financing and (B) materials for rating agency presentations, (iii) as promptly as reasonably practicable, preparing and furnishing to Purchaser and its financing sources all financial information, financial data and other customary marketing materials to be used information regarding the Acquired Companies requested by the Purchaser as is desirable or required in connection with the marketing arrangement, marketing, negotiation and execution of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreedFinancing, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior delivering to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Purchaser, no later than four Business Days prior to the Closing Date) with all , any materials and documentation and other information with respect to about the Company Acquired Companies required by regulatory authorities under applicable “know your customer” and anti-money laundering rules Laws (including the Uniting and regulationsStrengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001), including without limitation to the PATRIOT Act, and in each case, extent requested by the Debt Financing Sources in writing at least ten Purchaser no less than 15 Business Days prior to the Closing Date; , (viiv) providing customary authorization letters to the Purchaser’s financing sources, authorizing the distribution of information to prospective lenders or investors, and (vi) using reasonable best efforts to cause their independent auditors to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) including by providing such other reasonably available financial customary consents and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request comfort letters in connection with the Debt any Financing (provided that and participating in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statementsdue diligence sessions). The foregoing notwithstanding, (ixw) assisting in the preparation of customary definitive financing documentation and the completion of any schedulesno stockholder, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer employee or employee other Affiliate of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall Acquired Companies will be required to pay any commitment or other fee or similar fee, provide any security, execute any document, make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) representations, provide any indemnification or incur any other liability Liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be is effective prior to the Closing, (ivx) the effectiveness of any documentation executed by any of the Acquired Companies (and the obligation of such Persons to pay any fees) with respect to the Financing will be subject to the consummation of the Closing, (y) the Purchaser will promptly, upon request by the Company, reimburse and indemnify the Company shall not for all costs or Liabilities incurred by the Acquired Companies in connection with the cooperation contemplated by this Section 7.8 (other than to the extent such costs or Liabilities arise from the gross negligence or willful misconduct by any of the Acquired Companies) and (z) none of the Acquired Companies, or any Persons who are directors of an Acquired Company, will be required to pass resolutions or consents to approve or authorize the execution of the debt financing or execute or deliver any certificate, document, instrument or agreement that is effective prior to the Closing or agree to any definitive change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing. Any information provided to the Purchaser or its Affiliates pursuant to this Section 7.8 will be subject to the Confidentiality Agreement and Section 7.5; except that any such information may be disclosed (i) to prospective lenders, underwriters, initial purchasers, placement agents, dealer managers, solicitation agents, information agents and depositary or other agents during syndication and marketing of the Financing that enter into confidentiality arrangements customary for financing documents transactions of the same type as such Financing (other than including customary representation “click-through” confidentiality undertakings) and authorization letters)(ii) on a confidential basis to rating agencies. The Sellers and the Company, including any other certificates or documents on behalf of themselves and the Acquired Companies, hereby consent to the reasonable use of the Acquired Companies’ trademarks, service marks and logos solely in connection with the Debt Financing; provided that such trademarks, except for any execution of documents service marks and logos are used solely in a manner that are conditioned upon is not intended to or reasonably likely to harm or disparage the Closing, (v) neither Acquired Companies or their Affiliates or the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation reputation or goodwill of the Debt Financing (except for any corporate actions that are conditioned upon Acquired Companies. The Purchaser shall obtain the Closing), and (vi) no Representative prior written consent of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, before the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)intended use.
Appears in 1 contract
Financing. (a) Prior to the ClosingEffective Time, the Company shall use reasonable best effortsprovide, and shall cause its Subsidiaries to use reasonable best effortsto, and shall use its reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, in each caseincluding legal and accounting, with appropriate seniority and expertise in the good faith judgement of the Companyto, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used Parent in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; the other transactions contemplated by this Agreement, including (iii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies, (ii) assisting with the preparation of materials for rating agency meetingspresentations, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary offering documents, private placement memoranda, bank information memoranda, prospectuses and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions similar documents required to be delivered in connection with the Debt Financing; , (iviii) permitting officers executing and delivering any pledge and security documents, currency or interest hedging arrangements other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Parent (including a certificate of the chief financial officer of the Company or any of its Subsidiaries who will be officers of Subsidiary with respect to solvency matters, customary authorization letters included in such syndication memoranda containing customary representations regarding the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of information about the Company and its SubsidiariesSubsidiaries included in such memoranda, and taking corporate action consents of accountants for use of their reports in any materials relating to authorize the borrowing and guarantees of the Debt Financing) or otherwise reasonably facilitating the pledging of collateral, provided that any of in each case effective on or after the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; Effective Time, (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (viiv) furnishing Parent and its Financing sources as promptly (as practicable and in any event at least five no later than 25 Business Days prior to the Closing Date) End Date with all documentation financial and other pertinent information with respect regarding the Company as may be reasonably requested by Parent, including all financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act and of type and form customarily included in private placements under Rule 144A of the Securities Act, including audits thereof to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsextent so required, including without limitation to consummate the PATRIOT Act, and in each case, requested offering of debt securities contemplated by the Debt Financing Sources Commitments at the time in writing at least ten Business Days prior to the Closing Date; Company’s fiscal year that such offering will be made, (viiv) using reasonable best efforts to cooperate with Parent obtain accountants’ comfort letters and legal opinions as reasonably requested by Parent, (vi) using its commercially reasonable efforts to satisfy provide monthly financial statements (excluding footnotes) within 25 days of the conditions precedent end of each month prior to the Debt Closing Date, (vii) taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Financing that are within to evaluate the control Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (B) effective on or after the Company or its Subsidiaries; (viii) providing such other reasonably available financial Effective Time, establish bank and other information with respect to the Company accounts and its business as Parent or its Debt Financing Sources may reasonably request blocked account agreements and lock box arrangements in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (iviii) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (taking all other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing reasonably necessary to permit the consummation of the Debt Financing and to permit the proceeds thereof to be made available to the Company (except for it being understood that (A) to the greatest extent practicable, the actions contemplated by this Section 7.9(a)(viii) shall not be required to be taken until immediately prior to the Closing and that prior to the taking of such actions, any corporate actions that are conditioned upon current member of the Closing), Board of Directors may resign and (viB) no Representative if such member of the Board of Directors resigns, the failure of any such director to take any such action shall not constitute a failure to satisfy a condition to Closing) and (ix) entering into one or more credit or other agreements on terms satisfactory to Parent in connection with the Debt Financing immediately prior to the Effective Time. Parent shall, promptly upon request by the Company, reimburse, or cause its Affiliates to reimburse, the Company for all reasonable and documented out-of-pocket costs incurred by the Company or any of its Subsidiaries in connection with such cooperation and shall be required to make indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives for and against any certifications that it does not reasonably and all losses suffered or incurred by them in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) connection with the financial statements identified in paragraphs 6 and 7 of Exhibit C arrangement of the Debt Financing Commitment Letter and any information utilized in connection therewith (other than information provided by the Company or the analogous provision Subsidiaries). The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing, provided that such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or the reputation or goodwill of the Company and its marks. All non-public or otherwise confidential information regarding the Company obtained by Parent, Merger Sub or their Representatives pursuant to this Section 7.9(a) shall be kept confidential in accordance with the Confidentiality Agreements, except for such information contained in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome offering memoranda referred to above and consented to by the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement(such consent not to be unreasonably withheld or delayed).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Laureate Education, Inc.)
Financing. (a) Prior The Company agrees to the Closing, the Company shall use reasonable best effortsprovide, and shall cause its Subsidiaries to use reasonable best efforts, and shall use reasonable best efforts to cause their its and their Subsidiaries’ respective RepresentativesRepresentatives to provide, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all reasonable cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing arrangement of any financing necessary to consummate the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; Transactions (iithe “Financing”) upon reasonable prior notice and at times to as may be reasonably agreed, participation of representatives of senior management of the Company (which participation may be requested by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the that is necessary or customary legal opinions required to be delivered in connection with Parent’s efforts to obtain the Debt Financing; Financing (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection provided that such requested cooperation does not unreasonably interfere with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) ongoing operations of the Company and its Subsidiaries), including (i) participation in meetings, road shows, drafting sessions, rating agency presentations and taking corporate action to authorize due diligence sessions, (ii) furnishing Parent and its Representatives with real estate and other pertinent information regarding the borrowing Company and guarantees its Subsidiaries as is necessary or customary in connection with the Financing and any security required therefor, including (A) the financial statements and financial data described in Schedule 6.06(a) and (B) the historical financial statements, information reasonably necessary for the preparation of pro forma financial statements, business and other financial data of the Debt Financing, provided that any Company and of the foregoing shall not require type required by Regulation S-X (other than Rule 3-10 thereof) and Regulation S-K under the adoption Securities Act and, in all cases, of the type and form customarily included in offering documents for securities offerings by the Company under Rule 144A under the Securities Act (all information required to be delivered pursuant to this clause (ii) being referred to as the ”Required Information”), (iii) executing and delivering any corporate resolutions pledge and security documents, currency or actions prior to the Closing Date; interest rate hedging arrangements or other definitive financing documents or other certificates (v) furnishing including a certificate of a financial the chief accounting officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior relating to the Closing DateCompany) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, documents as may be reasonably requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; Parent, (viiiv) using reasonable best efforts to cooperate with obtain accountants’ comfort letters, accountants’ consent letters, legal opinions, appraisals, lien searches, surveys and title insurance as reasonably requested by Parent to satisfy and (v) assisting Parent and its financing sources in the conditions precedent preparation of (A) customary offering documents, bank information memoranda (including the execution of customary representation letters reasonably satisfactory to the Debt Financing that are within the control Company in connection with such bank information memoranda) and similar documents for any of the Company Financing; provided that any such offering document, bank information memoranda or its Subsidiaries; (viii) providing such other reasonably available similar documents contains disclosure and financial and other information statements with respect to the Company or the Surviving Corporation reflecting the Surviving Corporation and/or its Subsidiaries as primary obligors or guarantors; and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (B) materials for rating agency presentations; provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative none of the Company or any of its Subsidiaries shall be required to make pay any certifications commitment or any other fee or incur any other liability in connection with the Financing prior to the Effective Time; provided, further, that it does not reasonably in good faith believe to be true. In addition, the effectiveness of any documentation executed by the Company or any of its Subsidiaries shall furnish be subject to the consummation of the Closing. Parent reasonably shall, promptly (upon termination of this Agreement, reimburse the Company for all reasonable out-of-pocket costs incurred by the Company or its Subsidiaries in connection with such cooperation or any actions contemplated by this Section 6.06(a). The Company agrees to provide, and shall cause its Subsidiaries and its and their Representatives to provide, all information and documents requested under this Section 6.06(a) promptly and, in any event, at least 20 days prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C date of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)Closing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Universal Health Services Inc)
Financing. (a) Prior to the Closing, Sellers and the Company shall use reasonable best effortsefforts to provide, and shall cause its Subsidiaries to use reasonable best efforts, and shall use reasonable best efforts to cause their Affiliates and each of their respective officers, employees, reserve engineers and advisors and other representatives to provide, all cooperation reasonably requested by Buyer in connection with the Financing, including (i) subject to Section 5.2, providing to Buyer and any Financing Parties any financial and other information relating to Sellers as it relates to the Company, the Company, the Interests or the Assets that is customary for a bank information memoranda or other offering documents (including all information reasonably required to prepare financial statements of the type required by and in compliance with Regulation S-X promulgated under the Securities Act and Regulation S-K promulgated under the Exchange Act) and any other related material reasonably necessary for the completion of the Financing by the Financing Parties, including information regarding the business, operations and financial projections (including budgets) of the Company, the Interests and the Assets that is customary for such financing or reasonably necessary for the completion of the Financing by the Financing Parties (such information shall be referred to as the “Financing Required Information”); (ii) assisting with updating any of the Financing Required Information, if required; (iii) participating and causing senior management of the Company to participate in a reasonable number of meetings (including customary one-on-one meetings) with any Financing Parties; (iv) in connection with any bank financing, providing customary authorization letters to the Financing Parties, if requested; (v) subject to Section 5.2, cooperating reasonably with the Financing Parties’ due diligence (including providing existing title information and title opinions), to the extent customary and reasonable and to the extent not unreasonably interfering with the business of Company or its Subsidiaries; (vi) assisting in the coordination of lien releases on the Interests to facilitate the pledging of collateral under any Financing provided by the Financing Parties; (vii) assisting in obtaining the consent of accountants and any reserve engineers to the use of their reports in any documents, marketing information or other materials related to the Financing; (viii) assisting in the amendment or novation of any of the Company’s or its Subsidiaries’ respective Representativesderivative transactions, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably on terms that are requested by Parent, in connection with arranging, syndicating, consummating and obtaining acceptable to the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used Buyer in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers provided that no obligation of the Company or any of its Subsidiaries who will Subsidiary under any such amendments or novations shall be officers of the Company or any of its Subsidiaries after Closing to execute effective until Closing; and deliver any documentation in connection with the Debt Financing (ix) subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorizationSection 5.2, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with providing all documentation and other information with respect about Sellers as it relates to the Company required Company, the Company, the Interests and the Assets as is reasonably requested by regulatory authorities under the Financing Parties relating to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior . Sellers hereby consent to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control use of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request Company’s logos in connection with the Debt Financing (Financing, provided that such logos are used solely in no event shall a manner that is not intended to or reasonably likely to harm or disparage the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding . Notwithstanding the foregoing, (i) nothing herein Buyer shall require be responsible for the Company, its Subsidiaries or any payment of their respective Representatives to take any action that would be effective prior to all reasonable out-of-pocket costs and expenses incurred in connection with the Closing (other than as expressly satisfaction of the covenants and agreements set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)7.16.
Appears in 1 contract
Financing. (a) Prior to the Closing, the Company each Partnership Entity shall use its reasonable best efforts, and shall cause its Subsidiaries efforts to use reasonable best effortsprovide, and shall use reasonable best efforts to cause their and their Subsidiaries’ respective Representativesits Representatives to provide, such assistance with the Debt Financing as is reasonably requested by Buyer Parties, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arrangingthe arrangement of, syndicatingand the satisfaction on a timely basis of all relevant conditions precedent to, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arrangingFinancing. Such assistance shall include, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), includingbut not be limited to: (i) assisting in reasonable participation in, and assistance with, the preparation of a confidential information memorandum the Marketing Material and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings rating agency presentations and delivering customary representation and authorization letters in connection therewithpresentations; (ii) reasonable participation by senior management of the Partnership Entities in a reasonable number of rating agency presentations, meetings with prospective lenders, road shows and drafting sessions, in each case upon reasonable prior notice and at times and locations to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) mutually agreed in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sourcesgood faith; (iii) providing customary delivering the Financing Information to the Buyer Parties (and such other financial and operational information and assistance reasonably necessary requested by the Buyer Parties or the Financing Sources, provided that, without limiting the requirement of the Partnership Entities to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection Buyer Parties with the Debt Financingpreparation of pro forma or projected financial information, the Partnership Entities shall not be responsible for the preparation of pro forma or projected financial information, which shall be prepared solely by Buyer Parties and the Partnership Entities shall have no liability with respect to such information prepared by the Buyer Parties) as promptly as reasonably practicable once available; (iv) permitting officers delivering customary authorization letters authorizing the distribution of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing Marketing Material to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Dateprospective investors; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate Buyer Parties and the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and Sources promptly, and, in any event event, at least five four Business Days prior to the Closing Date) , with all documentation and other information with in respect of the Partnership Entities that any Debt Financing Source has requested in writing at least nine Business Days prior to the Company Closing Date that is required by regulatory authorities Governmental Authorities under applicable “beneficial ownership,” “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act, ; and in each case, requested by (vi) assisting the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request Buyer Parties in connection with the preparation by Buyer Parties of the Debt Financing Documents (provided that including executing and delivering the Debt Financing Documents with respect thereto) and the borrowing of loans including by causing the Organizational Documents of the Partnership Entities to be amended in no event shall a manner to permit or facilitate the CompanyDebt Financing; and (vii) cooperating with any due diligence in connection with an offering of debt securities, its Subsidiariesto the extent customary and reasonable, and their respective Representatives be required to provide any pro forma financial information or statements), (ixviii) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, causing (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with event the Debt Financing or provide or agree does not include an offering of debt securities, using commercially reasonable efforts to cause) the independent accountants of the Partnership Entities to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior assistance and cooperation to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents Buyer Parties in connection with the Debt Financing, except for any execution including causing (or, in the event the Debt Financing does not include an offering of documents that are conditioned upon the Closingdebt securities, using commercially reasonable efforts to cause) such independent accountants to (A) deliver customary comfort letters (including customary “negative assurance” statements), (vB) neither provide customary consents to use their audit reports on the Company nor audited financial statements provided as part of the Financing Information and (C) cause their participation in accounting due diligence sessions and assistance with any of pro forma financial statements as required pursuant the Debt Commitment Letter, (y) issuing any customary representation letters to its Subsidiaries (nor their respective governing bodies) shall be required to take independent accountants in connection with any corporate actions prior to the Closing to permit the consummation financial statements included in any offering documents in respect of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (viz) no Representative of cooperating with the Company or Buyer Parties’ legal counsel in connection with any of its Subsidiaries shall legal opinions that such counsel may be required to make any certifications deliver in connection with the Debt Financing. Information provided by the Partnership Entities in connection with the Debt Financing shall only be provided to sources or potential sources of financing and rating agencies that it does not reasonably in good faith believe have agreed to be true. In addition, the Company shall furnish Parent bound by customary confidentiality provisions reasonably promptly (and, in any event, prior acceptable to the Closing) Partnership Entities. The Partnership Entities hereby consent to the use of all of the Partnership Entities’ logos in connection with the financial statements identified Debt Financing, provided that such logos are used solely in paragraphs 6 a manner that is not intended to or reasonably likely to harm or disparage the Partnership Entities, their respective Affiliates or their respective business, or the reputation or goodwill thereof. The Buyer Parties acknowledge and 7 of Exhibit C agree that the obtaining of the Debt Financing shall not constitute a condition to the Buyer Parties obligation to close the transactions contemplated by this Agreement. For the avoidance of doubt, the Partnership Entities assistance obligations pursuant to this clause (a) shall apply to any Debt Financing contemplated under the Alternative Debt Commitment Letter or Incremental Facility Amendment in addition to the Debt Commitment Letter and shall include obligations to assist the Buyer Parties in connection with the granting of a security interest (or and perfection thereof) in the analogous provision in any commitment letter for any Alternative Debt Financing equity interests of the Partnership Entities that are to be pledged as “collateral” thereunder, including (provided x) requesting that the conditions set forth in such analogous provision shall be not more burdensome transfer agent with respect to the Company applicable Partnership Entity make any applicable notations in any respect than those contained the equity register of the applicable Partnership Entity reflecting the pledge of its equity interests that constitute “collateral” in favor of the Debt Financing Commitment Letter as in effect Sources or an agent or trustee on their behalf if required or, if certificated, delivering duly executed stock certificates to, or at the direction of, the Buyer Parties with respect to the applicable Partnership Entity on the date of this Agreement)Closing Date.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Tallgrass Energy, LP)
Financing. (a) Prior to the ClosingClosing Date, the Company shall use reasonable best effortsshall, and shall cause its Subsidiaries to use reasonable best effortsto, and shall use its reasonable best efforts to cause their the Company’s and their its Subsidiaries’ respective RepresentativesRepresentatives to, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent and Acquisition Sub all cooperation reasonably requested by ParentParent that is necessary, in connection with arrangingproper, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used advisable or desirable in connection with the marketing arrangement of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; Financing, including (iii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) participating in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies and assisting Parent in obtaining ratings as contemplated by the Debt Financing; (ii) assisting with the preparation of materials for rating agency meetingspresentations, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary bank information memoranda, and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions similar documents required to be delivered in connection with the Debt Financing; (iv) permitting officers , including execution and delivery of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation customary representation letters in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorizationbank information memoranda; provided, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing such memoranda or prospectuses shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a contain disclosure and financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information statements with respect to the Company required or the Surviving Corporation reflecting the Surviving Corporation and/or its Subsidiaries as the obligor; (iii) as promptly as reasonably practical, furnishing Parent and its Debt Financing sources with financial and other information regarding the Company and its Subsidiaries as may be reasonably requested by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation Parent to prepare the PATRIOT Act, and in each case, requested bank information memoranda contemplated by the Debt Financing Sources Letter (including in writing at least ten Business Days connection with Parent’s preparation of pro forma financial statements), (all such information in this clause (iii), the “Required Information”); (iv) using reasonable best efforts to obtain appraisals, surveys, engineering reports, environmental and other inspections (including providing reasonable access to Parent and its agents to all Owned Real Property for such purposes), title insurance and other documentation and items relating to the Debt Financing as reasonably requested by Parent and, if requested by Parent or Acquisition Sub, to cooperate with and assist Parent or Acquisition Sub in obtaining such documentation and items; (v) providing assistance to obtain a solvency opinion from an independent investment bank or valuation firm of nationally recognized standing; (vi) using reasonable best efforts to provide monthly financial statements (excluding footnotes) within fifteen (15) days of the end of each month prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent obtain consents of accountants for use of their reports in any materials relating to the Debt Financing that are within and reasonably facilitating the control pledging or the re-affirmation of the Company or its Subsidiariespledge of collateral (including cooperation in connection with the pay-off of existing Indebtedness and the release of related Liens); (viii) providing such other reasonably available financial taking commercially reasonable actions necessary to (A) permit the prospective lenders involved in the Debt Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements as of the Effective Time and (B) assist Parent to establish or maintain, effective as of the Effective Time, bank and other information with respect to the Company accounts and its business as Parent or its Debt Financing Sources may reasonably request blocked account agreements and lock box arrangements in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), Financing; (ix) assisting in using reasonable best efforts to assist Parent to obtain waivers, consents, estoppels and approvals from other parties to material leases, encumbrances and contracts to which any Subsidiary of the preparation Company is a party and to arrange discussions among Parent, Acquisition Sub and their financing sources with other parties to material leases, encumbrances and contracts as of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) Effective Time; and (x) obtain payoff letterstaking all corporate actions, Lien terminations subject to the occurrence of the Effective Time, reasonably requested by Parent that are necessary or customary to permit the consummation of the Financing, and instruments of discharge to permit the proceeds thereof, together with the cash at the Company and its Subsidiaries (not needed for other purposes), to be delivered at Closing made available to allow for the payoff, discharge and termination in full Company on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that to consummate the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing DateMerger; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment none of the Company or any of its Subsidiaries, interfere unreasonably or any of their respective officers, advisors or representatives shall incur any liability in connection with the business or Financing prior to the Effective Time; provided, further, that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Significant Subsidiaries. The Company will use its reasonable best efforts to periodically update any such Required Information provided pursuant to clause (iii) of the foregoing sentence as may be necessary such that such Required Information does not contain any untrue statement of material fact or omit to state any material fact necessary in order to make the statements contained therein not misleading. For the avoidance of doubt, if requested by Parent to most effectively access the financing markets, the Company shall use its reasonable best efforts to cooperate with this Section 5.8 at any time, and from time to time and on multiple occasions, between the date hereof and the Effective Time. In addition, the Company agrees that if reasonably requested by Parent it will supplement and use reasonable best efforts to keep current the Required Information so that Parent may most effectively access the financing markets. If, in connection with a marketing effort contemplated by the Debt Financing Letter, the Parent reasonably requests the Company to file a report on Form 8-K pursuant to the Exchange Act that contains material non-public information with respect to the Company and its subsidiaries, which the Parent reasonably determines to include in a customary offering memorandum for such debt, then, upon the Company’s review of and satisfaction with such filing (it being acknowledged and agreed that such filing shall contain any and all reasonable comments of the Company), jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measuresshall file such report on Form 8-K; provided, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Subhowever, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) that the Company shall not be required to disclose file any information on Form 8-K that the Company reasonably determines are reasonably likely to Parent be competitively harmful to the Company, it being understood that publication of an adjusted EBITDA number will not be deemed to be competitively harmful to the Company. All non-public or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of otherwise confidential information regarding the Company or its AffiliatesSubsidiaries obtained by Parent, Acquisition Sub or their respective officers, advisors or representatives shall be kept confidential in accordance with the Confidentiality Agreement. The Company shall deliver to Parent as promptly as reasonably practicable following the end of each fiscal quarter ending on or after December 31, 2009, the unaudited consolidating balance sheets and combined statements of income reflecting the financial condition as of the last day of each fiscal quarter and the results of operations during such quarter and for the elapsed portion of the fiscal year together with a comparison to the comparable period from the prior fiscal year, in each case, of the Company and prepared in accordance with GAAP (except for the absence of footnotes and subject to year-end adjustments). Parent shall indemnify and hold harmless the Company, its Significant Subsidiaries and their respective officers, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay representatives from and against any commitment and all losses, damages, claims, costs or other fee expenses suffered or make incurred by any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur of them of any other liability type in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any arrangement of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents Financing (other than customary representation and authorization letters)to the extent such losses arise from the misconduct of the Company, including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor or their respective governing bodiesofficers, advisors and representatives) shall be required to take and any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing)information used in connection therewith, and (vi) no Representative of the Company or any of its Subsidiaries foregoing obligations shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date survive termination of this Agreement).
Appears in 1 contract
Financing. (a) Prior to the Closing, the Company shall use its commercially reasonable best efforts, and shall cause its each of the Company Subsidiaries to use its respective commercially reasonable best efforts, and shall use reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement of the Companyprovide to Parent, at Parent’s sole cost and expense, to provide to Parent all cooperation as may be reasonably requested by Parent, Parent in connection with arranging, syndicating, consummating arranging and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arrangingFinancing, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: including using commercially reasonable efforts to (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times notice, cause the Company’s appropriate senior officers to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) participate in a reasonable number of due diligence sessions, drafting sessions meetings and rating agency meetings, as well as a reasonable number of meetings presentations with Debt Financing Sourceslenders and prospective lenders; (iiiii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with provide all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, U.S.A. Patriot Act of 2001 to the extent requested by the Debt Financing Sources in writing at least ten Business Days prior to Closing; (iii) if required by the Debt Financing, reasonably facilitate the pledging of collateral for the Debt Financing, including by delivering original stock certificates, original stock powers and other equity instruments (together with appropriate original powers relating thereto) and original promissory notes (together with appropriate original note allonges relating thereto) to the Company on the Closing Date, provided that no pledge shall be effective until the Closing; (viiiv) using reasonable best efforts furnish on a confidential basis to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing Parent, as promptly as reasonably practicable, such historical financial information and all other reasonably available pertinent financial and other information with respect to regarding the Company and its business Subsidiaries as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, is necessary and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution including in connection with the preparation of documents that are conditioned upon the Closingcustomary bank information materials, bank syndication materials, confidential information memoranda and similar customary marketing materials, as may be reasonably requested by Parent; (v) neither if required by the Company nor any Debt Financing, execute and deliver, as of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing)Date, definitive financing documents, including guarantee and collateral documents, hedging agreements and other certificates and documents as may be requested by Parent; and (vi) no Representative reasonably assist in the preparation of the Company or any of its Subsidiaries shall be schedules required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) connection with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)Financing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Momentive Performance Materials Inc.)
Financing. (a) Prior to During the ClosingInterim Period, the Company shall use reasonable best efforts, Oncor Holdings and shall cause its Subsidiaries Oncor each agree to use reasonable best effortsefforts to provide, and shall to use reasonable best efforts to cause their Subsidiaries and their Subsidiaries’ respective Representativesofficers and Representatives to provide, reasonable cooperation in connection with the arrangement of any debt or equity issuance contemplated by the Merger Agreement or the Plan of Reorganization (each, a “Financing”) (provided that Parent shall use reasonable best efforts to provide Oncor Holdings and Oncor with notice of any information needed by Parent as soon as reasonably practicable), which cooperation shall be limited to the following: (i) participation by appropriate members of senior management of the Oncor Entities, which participation will be limited to providing Oncor financial and operational information in meetings, presentations, road shows, due diligence sessions, and sessions with prospective lenders, investors and rating agencies, in each case, at mutually agreeable times and locations and upon reasonable notice; (ii) providing information in its control to Purchasers that is necessary for Purchasers to prepare materials for rating agencies and rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with appropriate seniority any such Financing, together with customary authorization letters authorizing the distribution of Oncor information to prospective lenders or investors; (iii) furnishing (A) all information and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation data reasonably requested by ParentParent to prepare all pro forma financial statements required in connection with any Financing and (B) all financial statements and financial data of the type and form required by Regulation S-X and Regulation S-K under the Securities Act for offerings of debt or equity securities on a registration statement on Form S-3 or Form S-4 under the Securities Act (which, for the avoidance of doubt, information with respect to assets, liabilities, revenue and EBITDA with respect to non-guarantors in the aggregate shall be provided) solely to the extent necessary to consummate the Financing, including all information required to be incorporated therein (subject to exceptions customary for a private Rule 144A offering) (the information required to be delivered pursuant to this clause (iii) the “Required Financial Information”); (iv) using reasonable best efforts to assist Parent and the lenders and investors for such Financing or their respective Affiliates in obtaining corporate, facilities and securities ratings, as applicable, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with prior to the terms launch of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing Financing; (collectively, the “Debt Financing”), including: (iv) assisting providing information in its control that is necessary for the preparation of a confidential information memorandum customary schedules and other customary marketing materials to be used exhibits in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and its Affiliates and the lenders or investors or their respective Affiliates providing or arranging Financing promptly, in any event at least five Business Days prior to the Closing Date) a timely manner, with all documentation and other information with respect to the Company which any lender or investor has reasonably determined is required by regulatory authorities in connection with such Financing under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT ActAct (which cooperation shall be required notwithstanding the reasonable best efforts standard required of Oncor Holdings and Oncor above), and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts providing customary management representation letters to the independent auditors and causing Oncor’s independent auditors to cooperate in connection with the Financing (including providing accountants’ comfort letters and consents from Oncor’s independent auditors to the extent required in connection with the Financing); and (viii) otherwise assisting Parent to satisfy the any express conditions precedent to the Debt Financing which require Oncor information, provided that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing foregoing clauses (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statementsi)-(viii), (ixA) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company Oncor shall not be required to disclose endorse any information to Parent particular strategy or structure, (B) the Purchasers shall be responsible for any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in projections, (C) such requested cooperation shall not unreasonably interfere with the waiver ongoing operations of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employeesOncor Entity, (iiiD) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives no Oncor Entity shall be required to pay any commitment or other similar fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability or obligation in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing Financing, (E) other than customary authorization letters, no Oncor Entity or any of their respective officers, directors, or employees shall be required to execute or enter into or perform any agreement with respect to the foregoing Financing that is not contingent upon the Closing or that would be effective prior to the ClosingPurchase Closing Date nor prepare any pro forma financial statements, (ivF) Persons who are on the Company board of directors or the board of managers (or similar governing body) of any Oncor Entity prior to the Purchase Closing Date in their capacity as such shall not be required to pass resolutions or consents to approve or authorize the execution of the Financing, and (G) no Oncor Entity or any of their respective officers, directors, or employees shall be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents solvency certificate in connection with the Debt Financing, except for . Nothing contained in this Section 13 or otherwise shall require any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall Oncor Entity to be required to take any corporate actions prior an issuer or other obligor with respect to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)Financing.
Appears in 1 contract
Samples: Oncor Electric Delivery Co LLC
Financing. (a) Prior From the date hereof until the earlier of (a) the Closing Date and (b) termination of this Agreement pursuant to the ClosingSection 8.01, the Company Biovail and Valeant shall use reasonable best effortsuse, and shall cause its the Biovail Subsidiaries and Valeant Subsidiaries, respectively, to use reasonable best effortsuse, and shall use their respective reasonable best efforts to take, or cause their to be taken, all actions and their Subsidiaries’ respective Representativesto do, in each caseor cause to be done, with appropriate seniority all things necessary, proper or advisable to arrange the financing and expertise related transactions (including the payment, refinancing and tendering of existing indebtedness) (the “Financing”) described in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing executed commitment letter attached hereto as Exhibit C (collectively, the “Debt FinancingCommitment Letter”), including: including using reasonable best efforts to (i) assisting in negotiate and enter into definitive agreements with respect thereto on the preparation of a confidential information memorandum terms and other customary marketing materials to be used in connection with conditions contemplated by the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; Commitment Letter, (ii) upon reasonable satisfy on a timely basis all conditions to obtaining the Financing set forth therein and (iii) consummate the Financing at or prior notice and at times to be reasonably agreedClosing, participation of representatives of senior management of the Company including (which participation may be by videoconferenceA) participating in a reasonable number of meetings, road shows, rating agency sessions and drafting sessions, and participating in reasonable and customary due diligence, (B) furnishing the financial institutions providing or arranging the Financing (the “Financing Sources”) with such financial and other pertinent information as may be reasonably requested to consummate the Financing, including all financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act 84 (including any required audits thereof, which shall be unqualified) and of the type and form customarily included in private placements pursuant to Rule 144A promulgated under the Securities Act, (C) assisting the Financing Sources in the preparation of (1) an offering document for any portion of the Financing and (2) materials for rating agency presentations, (D) reasonably cooperating with the marketing efforts for any portion of the Financing and (E) causing their respective independent accountants to provide assistance and cooperation in the Financing, including (1) participating in a reasonable number of drafting sessions and accounting due diligence sessions, drafting sessions and rating agency meetings(2) providing any necessary consents to use their audit reports relating to Biovail or Valeant, as well as a reasonable number of meetings with Debt Financing Sources; applicable, and (iii3) providing customary information any necessary “comfort letters.” Biovail and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its SubsidiariesValeant shall, and taking corporate shall cause their respective Subsidiaries to, refrain from taking, directly or indirectly, any action that would reasonably be expected to authorize result in the borrowing and guarantees failure of the Debt Financing, provided that any of the foregoing shall not require conditions contained in the adoption of Commitment Letter or in any corporate resolutions or actions prior definitive agreement related to the Closing Date; (v) furnishing a certificate of a financial officer Financing. In the event any portion of the Company with respect to solvency matters Financing becomes unavailable on the terms and conditions set forth in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (Commitment Letter, Biovail and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using Valeant shall use their reasonable best efforts to cooperate with Parent to satisfy obtain alternative financing from alternative sources as promptly as reasonably practicable following the conditions precedent occurrence of such event. Biovail shall give Valeant prompt notice of any material breach by any party to the Debt Financing that are within the control Commitment Letter of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect which Biovail becomes aware. Valeant shall give Biovail prompt notice of any material breach by any party to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)Valeant becomes aware.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Valeant Pharmaceuticals International)
Financing. (a) Prior to the Closing, the Company shall use reasonable best effortsshall, and shall cause its Subsidiaries to use reasonable best effortsto, and shall use reasonable best efforts to cause their its and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement of the CompanyRepresentatives to, at Parent’s sole cost expense for any and expenseall reasonable and documented out-of-pocket expenses, to provide to Parent all and Merger Sub such cooperation reasonably requested by ParentParent that is necessary, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company proper or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request advisable in connection with the Debt Financing (provided that in no event shall such requested cooperation does not unreasonably interfere with the Company, operations of the Company and its Subsidiaries), including (i) participation in a reasonable number of meetings, presentations, road shows, due diligence sessions and their respective Representatives sessions with rating agencies; (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the Debt Financing, including execution and delivery of customary representation letters in connection with bank information memoranda; provided that any private placement memoranda or prospectuses in relation to high yield debt securities need not be required issued by the Company or any of its Subsidiaries; provided further that any such memoranda or prospectuses shall contain disclosure and financial statements with respect to provide any the Company or the Surviving Corporation reflecting the Surviving Corporation and/or its Subsidiaries as the obligor; (iii) as promptly as reasonably practical, furnishing Parent and its Debt Financing sources with financial and other information regarding the Company and its Subsidiaries as may be reasonably requested by Parent, including financial statements, pro forma financial information, financial data, audit reports and other information of the type required by Regulation S-X and Regulation S-K promulgated under the Securities Act and of type and form customarily included in a registration statement on Form S-1 (or statementsany applicable successor form) (subject to exceptions customary for a Rule 144A offering for affiliates of or funds advised by affiliates of Parent) under the Securities Act for a public offering to consummate the offering(s) of debt securities contemplated by the Debt Commitment Letters, assuming that such offering(s) were consummated at the same time during the Company’s fiscal year as such offering(s) of debt securities will be made, or as otherwise reasonably required in connection with the Debt Financing and the transactions contemplated by this Agreement or as otherwise necessary in order to assist in receiving customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt securities contemplated by the Debt Commitment Letters (all such information in this clause (iii), the “Required Information”); (iv) using reasonable best efforts to obtain customary accountants’ comfort letters, legal opinions, appraisals, surveys, title insurance and other documentation and items relating to the Debt Financing as reasonably requested by Parent and, if requested by Parent or Merger Sub, to cooperate with and assist Parent or Merger Sub in obtaining such documentation and items; (v) using its reasonable best efforts to provide monthly financial statements (excluding footnotes) within 25 days of the end of each month prior the Closing Date; (vi) executing and delivering, as of the Effective Time, any pledge and security documents, other definitive financing documents, or other certificates, legal opinions or documents, as may be reasonably requested by Parent (including a certificate of the Chief Financial Officer of the Company or any Subsidiary with respect to solvency matters and consents of accountants for use of their reports in any materials relating to the Debt Financing) and otherwise reasonably facilitating the pledging of collateral (including cooperation in connection with the pay-off of existing indebtedness and the release of related Liens); (vii) taking commercially reasonable actions necessary to (A) permit the prospective lenders involved in the Debt Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements as of the Effective Time and (B) establish, effective as of the Effective Time, bank and other accounts and blocked account agreements and lock box arrangements in connection with the Debt Financing; (viii) using reasonable best efforts to obtain waivers, consents, estoppels and approvals from other parties to material leases, encumbrances and contracts to which any Subsidiary of the Company is a party and to arrange discussions among Parent, Merger Sub and their financing sources with other parties to material leases, encumbrances and contracts as of the Effective Time; (ix) assisting in taking all corporate actions, subject to the preparation Effective Time, reasonably requested by Parent that are necessary or customary to permit the consummation of customary definitive financing documentation the Debt Financing and to permit the completion of any schedulesproceeds thereof, exhibits or annexes thereto together with the cash at the Company and its Subsidiaries (including a customary perfection certificate) not needed for other purposes), to be made available to the Company on the Closing Date to consummate the Merger; and (x) obtain payoff letters, Lien terminations and instruments of discharge take such corporate actions to be delivered at Closing to allow form subsidiary entities for the payoff, discharge and termination facilitation of the real estate financings (provided that neither the Company nor any of its Subsidiaries is subjected to tax or service of process in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness jurisdiction where it is not already so subject); it being understood that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, Company shall have satisfied each of its obligations set forth in clauses (i) nothing herein through (x) of this sentence if the Company shall require have used its reasonable best efforts to comply with such obligations whether or not any applicable deliverables are actually obtained or provided. The Company will take reasonable best efforts to periodically update any such Required Information provided to Parent pursuant to clause (iii) of the Company, its Subsidiaries foregoing sentence as may be necessary such that such Required Information does not contain any untrue statement of material fact or omit to state any of their respective Representatives material fact necessary in order to take any action that would be effective prior make the statements contained therein not misleading. The Company hereby consents to the Closing (other than as expressly set forth use of its and its Subsidiaries’ logos in this Section 6.17) or, connection with the Debt Financing; provided that such logos are used solely in the good faith judgment of a manner that is not intended to nor is reasonably likely to harm or disparage the Company or any of its Subsidiaries, interfere unreasonably with the business reputation or operations of any of the Company, jeopardize the health and safety of any employee goodwill of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters)assets, including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither their logos and marks. Neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required required, under the provisions of this Section 5.11 or otherwise in connection with the Debt Financing (x) to take pay any corporate actions commitment or other similar fee prior to the Closing Effective Time that is not advanced or substantially simultaneously reimbursed by Parent or (y) to permit incur any out-of-pocket expense unless such expense is reimbursed by Parent on the consummation earlier of the Effective Time or termination of this Agreement in accordance with Article VII. Parent shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses suffered or incurred by them in connection with (1) any action taken by them at the request of Parent or Merger Sub pursuant to this Section 5.11 or in connection with the arrangement of the Debt Financing or (except for 2) any corporate actions that are conditioned upon the Closing), and information utilized in connection therewith (vi) no Representative of other than information provided by the Company or any of its Subsidiaries). Nothing contained in this Section 5.11 or otherwise shall require the Company to be an issuer or other obligor with respect to the Debt Financing prior to the Closing. All material, non-public information regarding the Company and its Subsidiaries provided to Parent, Merger Sub or their Representatives pursuant to this Section 5.11(a) shall be kept confidential by them in accordance with the Confidentiality Agreements except for disclosure to potential investors as required in connection with the Financing subject to make any certifications that it does not reasonably in good faith believe to be truecustomary confidentiality protections. In addition, For the Company shall furnish Parent reasonably promptly (and, in any eventavoidance of doubt, prior to the Closing, Parent shall be permitted to engage in customary equity syndication to include other investors; provided that Parent shall not do so in such a way so as to cause an investor or an investor of a firm (other than Apollo and TPG) with to require Gaming Approval prior to the financial statements identified in paragraphs 6 and 7 of Exhibit C Merger or would otherwise materially delay the consummation of the Debt Financing Commitment Letter (or the analogous provision in Closing; provided further that Parent shall not enter into any commitment letter agreement for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome investment on an exclusive basis with a potential equity investor prior to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)Solicitation Period End-Date.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Harrahs Entertainment Inc)
Financing. (a) Prior to Between the Closingdate hereof and the Stock Purchase Closing Date, the Company shall use reasonable best effortsprovide to Buyer, and shall cause its the Company Subsidiaries to use reasonable best effortsto, and shall use its commercially reasonable best efforts to cause their the respective officers, employees, representatives and their Subsidiaries’ respective Representativesadvisors, in each caseincluding legal and accounting, with appropriate seniority and expertise in the good faith judgement of the CompanyCompany and the Company Subsidiaries to, at Parent’s sole cost and expense, to provide to Parent Buyer, all cooperation reasonably requested by ParentBuyer that is necessary, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used proper or advisable in connection with the marketing of the Debt Financing Financing, including (i) participation in meetings, presentations, road shows, due diligence sessions and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; sessions with rating agencies, (ii) upon using its commercially reasonable prior notice and at times efforts to be reasonably agreed, participation assist with the preparation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and materials for rating agency meetingspresentations, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary offering documents, private placement memoranda, bank information memoranda, prospectuses and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions similar documents required to be delivered in connection with the Debt Financing; , (iii) using its commercially reasonable efforts to furnish Buyer and its Financing sources with financial and other pertinent information regarding the Company as may be reasonably requested by Buyer, including all financial statements and financial data of the type required by Regulation S–X and Regulation S–K under the Securities Act and of type and form customarily included in offering memoranda for private placements under Rule 144A of the Securities Act, to consummate the offerings of debt securities contemplated by the Financing at the time during the Company’s fiscal year such offerings will be made, (iv) permitting officers using commercially reasonable efforts to obtain accountants’ comfort letters, legal opinions, surveys and title insurance as reasonably requested by Buyer, (v) using its commercially reasonable efforts to provide monthly financial statements (excluding footnotes) within 25 days of the end of each month prior to the Stock Purchase Closing Date, (vi) using its commercially reasonable efforts to take all actions necessary and appropriate to (A) permit the prospective lenders involved in the Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements and (B) establish bank and other accounts and blocked account agreements and lock box arrangements effective with respect to the period commencing at the Merger Closing, and (vii) using its commercially reasonable efforts to facilitate the repayment of Company or any debt on the Merger Closing Date using available cash of the Company. The Company hereby consents to the use of its Subsidiaries who will be officers of and the Company or any of its Subsidiaries after Closing to execute and deliver any documentation Subsidiaries’ logos in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that . Notwithstanding any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose provide any information to Parent assistance or other cooperation, or take any of its Affiliates other action, under this SECTION 6.07 which would materially interfere with the business or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any operations of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its AffiliatesSubsidiaries or violate any law, directors, officers, employees, agents and Representatives shall be required rule or regulation applicable to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing Company or any of Company Subsidiary. If this Agreement is terminated without the foregoing that would be effective prior to Stock Purchase being completed or the ClosingMerger being consummated, (iv) Buyer shall promptly, upon request by the Company, reimburse the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation for all out of pocket costs and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of expenses incurred by the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, Subsidiaries in any event, prior to the Closing) connection with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)SECTION 6.07.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Chart Industries Inc)
Financing. (a) Prior to the ClosingEffective Time, the Company shall use reasonable best effortsprovide, and shall cause its Subsidiaries to use reasonable best effortsto, and shall use its reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement of the CompanyRepresentatives to, at Parent’s sole cost and expenseexpense for any and all out-of-pocket expenses, to provide to Parent all cooperation reasonably requested by Parent, in connection Parent with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used reasonable notice in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; Financing, including (iii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of meetings, presentations, due diligence sessions, drafting sessions, road shows and sessions and with rating agencies, (ii) assisting with the preparation of materials for rating agency meetingspresentations, as well as a reasonable number of meetings with Debt Financing Sources; offering documents, private placement memoranda, bank information memoranda, prospectuses, business projections and financial statements (iiiincluding those required by the SEC) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions similar documents required to be delivered in connection with the Debt Financing; (iv) permitting officers of , provided that neither the Company or nor any of its Subsidiaries who will needs to be officers the issuer of any such presentations, documents, memoranda or prospectuses, (iii) furnishing Parent and its Financing source with readily-available historical financial and other pertinent information regarding the Company as may be reasonably requested by Parent, including all historical financial statements and financial data of the Company or type required by Regulation S-X and Regulation S-K under the Securities Act and of the type and form customarily included in private placements under Rule 144A of the Securities Act, to use in connection with any of its Subsidiaries after Closing to execute and deliver any documentation financing transaction executed in connection with the Debt Financing (subject to subclause transactions contemplated hereby, and (iv) of the proviso below) including any customary closing officer’s certificates using commercially reasonable efforts to obtain accountants’ comfort letters, legal opinions, surveys, affidavits and secretary’s certificates prepared title insurance as may be requested by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, Parent; provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth contained in this Section 6.17) or, in 7.09 shall require such cooperation to the good faith judgment of the Company or any of its Subsidiaries, extent that it would interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither Subsidiaries. Neither the Company nor any of its Subsidiaries shall be required, under the provisions of this Section 7.09 (nor x) to pay any commitment or other similar fee prior to the Effective Time that is not advanced or simultaneously reimbursed by Parent, or (y) to incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Parent. Parent shall indemnify and hold harmless the Company, its Subsidiaries and their respective governing bodiesRepresentatives from and against any and all costs or expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement suffered or incurred by them and any claims made against them in connection with (1) any action taken by them at the request of Parent or Merger Sub pursuant to this Section 7.09 or (2) any information utilized in connection therewith (other than information provided by the Company or its Subsidiaries), and this indemnification shall survive termination of this Agreement. All material, non-public information regarding the Company and its Subsidiaries provided to Parent, Merger Sub or their Representatives pursuant to this Section 7.09(a) shall be required to take any corporate actions prior to kept confidential by them in accordance with the Closing to permit the consummation of the Debt Financing (Confidentiality Agreement except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be disclosure to potential investors as required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) connection with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome subject to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)customary confidentiality protections.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Image Entertainment Inc)
Financing. (a) Prior to the Closing, the Company shall use reasonable best effortsshall, and shall cause its Subsidiaries to use reasonable best effortsto, and shall its and their respective Representatives to, use their reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent and Merger Sub all cooperation reasonably requested by ParentParent that is necessary, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used proper or advisable in connection with the marketing of the Debt Financing Commitments and ratings agency presentations the transactions contemplated by this Agreement, including (i) participation in meetings, presentations, road shows, due diligence sessions and delivering customary representation and authorization letters in connection therewith; sessions with rating agencies, (ii) upon reasonable prior notice and at times to be reasonably agreed, participation assisting with the preparation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and materials for rating agency meetingspresentations, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary offering documents, private placement memoranda, bank information memoranda, prospectuses and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions similar documents required to be delivered in connection with the Debt Financing; , including execution and delivery of customary representation letters in connection with bank information memoranda, (iviii) permitting officers as promptly as practical, furnishing Parent and its Debt Financing sources with financial and other information regarding the Company and its Subsidiaries as may be reasonably requested by Parent, including all financial statements, pro forma financial information, financial data and other information of the Company type required by Regulation S-X and Regulation S-K under the Securities Act and of type and form customarily included in a registration statement on Form S-1 (or any applicable successor form) under the Securities Act for a public offering to consummate the offering(s) of its Subsidiaries who will debt securities contemplated by the Debt Financing Commitments, assuming that such offering(s) were consummated at the same time during the Company’s fiscal year as the offering(s) of debt securities contemplated by the Debt Financing Commitments, and such information that would be officers of the Company or any of its Subsidiaries after Closing necessary in order to execute and deliver any documentation receive customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with the Debt Financing (subject to subclause (ivoffering(s) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested debt securities contemplated by the Debt Financing Sources in writing at least ten Business Days prior to Commitments (all such information, the Closing Date; “Required Information”), (viiiv) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiariesobtain accountants’ comfort letters, legal opinions, surveys and title insurance as reasonably requested by Parent; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior such cooperation to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, extent it would interfere unreasonably with the business or operations of any the Company or its Subsidiaries, (v) using its commercially reasonable efforts to provide monthly financial statements (excluding footnotes) within 25 days of the Companyend of each month prior the Closing Date, jeopardize (vi) executing and delivering, as of the health Effective Time, any pledge and safety security documents, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Parent (including a certificate of any employee the Chief Financial Officer of the Company or any Subsidiary with respect to solvency matters and consents of its Subsidiaries accountants for use of their reports in light any materials relating to the Debt Financing) and otherwise reasonably facilitating the pledging of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, collateral (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability including cooperation in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any pay-off of existing indebtedness and the foregoing that would be effective prior to the Closingrelease of related liens), (ivvii) taking all actions necessary to (A) permit the Company shall not be required prospective lenders involved in the Financing to execute prior to evaluate the Closing any definitive financing documents Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements and (B) establish bank and other than customary representation accounts and authorization letters), including any other certificates or documents blocked account agreements and lock box arrangements in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, foregoing and (vviii) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any taking all corporate actions prior to the Closing necessary to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon and to permit the Closing)proceeds thereof, and (vi) no Representative of together with the cash at the Company or any of and its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe Subsidiaries, to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome made available to the Company on the Closing Date to consummate the Merger. The Company will periodically update any such Required Information to be included in an offering document to be used in connection with such Debt Financing in order to ensure that such Required Information does not contain any respect than those untrue statement of material fact or omit to state any material fact necessary in order to make the statements contained therein not misleading. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing Commitment Letter as in effect on the date of this Agreement)Financing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Aleris International, Inc.)
Financing. (a) Prior to the Closing, the Company Buyer shall use reasonable best efforts, and shall cause its Subsidiaries to use reasonable best efforts, and shall use reasonable best efforts to cause their obtain and their Subsidiaries’ respective Representativesconsummate bank financing, a placement of convertible notes and/or other source of debt financing (the “Financing”) as promptly as practicable in each caseorder to obviate the need to deliver any Escrow Note or Purchase Price Note at Closing. In the interest of clarity, with appropriate seniority and expertise in the good faith judgement completion of the Company, at Parent’s sole cost and expense, Financing is not a condition to Closing. (b) The Company shall provide to Parent all Buyer such cooperation and information as is reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used Buyer in connection with the marketing of the Debt Financing Financing, including (i) participating in meetings and ratings agency presentations with prospective lenders and delivering customary representation and authorization letters in connection therewith; investors, (ii) upon reasonable prior notice providing Buyer with customary historical and at times projected financial information and data, including, to be the extent reasonably agreedavailable, participation of representatives of senior management (A) audited consolidated financial statements of the Company and its Subsidiaries for the year ended December 31, 2016 and (which participation may be by videoconferenceB) unaudited consolidated financial statements of the Company and its Subsidiaries for each month in a reasonable number of due diligence sessions2017, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary and reasonable information for inclusion in offering documents, bank information memoranda and assistance reasonably necessary to assist Parent similar documents and its counsel with obtaining materials for the customary legal opinions required to be delivered in connection with the Debt Financing; , and (iv) permitting officers providing customary and reasonable information to assist Buyer in the preparation, execution and delivery of any credit agreement, indenture, underwriting agreement, purchase agreement or other customary documents and certificates with respect to the Financing. 35 (c) The Company will use its reasonable best efforts to update any information provided to Buyer pursuant to Section 4.10(b) as may be necessary so that such information does not contain any material misstatement of fact or omit to state any fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not materially misleading. (d) None of Seller, the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its their respective Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financingmembers, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation directors, managers, officers, employees, accountants, legal counsel and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event Representatives shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required require such Person to pay any commitment or other fee or make any other payment (other than fees and costs for which are it not reimbursed by Parent in accordance with this Section 6.17Buyer, (ii) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt the Financing or its performance of its obligations under this Section 4.10 and any information utilized in connection therewith, provided, that, notwithstanding the foregoing, such accountants and legal counsel may be subject to potential liability in connection with comfort letters, audit opinions and legal opinions provided in connection therewith. Buyer shall indemnify, defend and hold harmless each of the foregoing that would be effective prior to the Closing, (iv) Seller and the Company shall not be required to execute prior to the Closing and their respective partners, members, directors, managers, officers, employees, accountants, legal counsel and other Representatives from and against any definitive financing documents (other than customary representation and authorization letters)all liabilities, including any other certificates losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or documents incurred by them in connection with the Debt FinancingFinancing and the performance of their respective obligations under this Section 4.10 and any information utilized in connection therewith, except in each case other than to the extent arising out of a material misstatement or omission in information provided to Buyer by or on behalf of Seller or the Company pursuant to this Section 4.10. If the Closing does not occur, Buyer shall, promptly upon request of Seller at any time after the termination of this Agreement for any execution of documents that are conditioned upon the Closingreason, (v) neither reimburse Seller and the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing)all reasonable and documented costs, fees and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on expenses incurred through the date of such termination in connection with the cooperation required by this Agreement).Section 4.10. Section 4.11
Appears in 1 contract
Samples: Equity Purchase Agreement
Financing. (a) Prior Subject to applicable Law, prior to the Closing, the Company shall use reasonable best effortsshall, and shall cause its Subsidiaries to use reasonable best effortsto, and shall use its reasonable best efforts to cause their its and their its Subsidiaries’ respective RepresentativesRepresentatives to, provide all cooperation reasonably requested in each case, writing by Parent in connection with appropriate seniority and expertise in the good faith judgement of Parent arranging financing with respect to the Company, the Subsidiaries of the Company or the Company Properties (collectively, the “Financing”), including using reasonable best efforts to (i) furnish such financial, statistical and other pertinent information and projections relating to the Company and its Subsidiaries as may be reasonably requested by Parent, within the Company’s and its Subsidiaries’ control and customarily prepared by or for the Company or its Subsidiaries in the ordinary course of business, (ii) make appropriate officers of the Company and its Subsidiaries available for due diligence meetings and for participation in meetings, presentations, road shows and sessions with rating agencies and prospective sources of financing, (iii) assist Parent and its financing sources with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents necessary, proper or advisable in connection with the Financing, (iv) reasonably cooperate with the marketing efforts of Parent and its financing sources for any Financing to be raised by Parent to complete the Mergers and the other transactions contemplated by this Agreement, (v) provide and execute documents as may be reasonably requested by Parent and reasonably acceptable to the Company in connection with such Financing (at Parent’s sole cost and expense), to provide to Parent all cooperation (vi) as may be reasonably requested by Parent, in connection with arranging, syndicating, consummating form new direct or indirect Subsidiaries pursuant to documentation reasonably satisfactory to Parent and obtaining the Debt Financing under Company and in accordance with effective as of or immediately prior to and conditioned on the terms occurrence of the Debt Financing Commitment Letter and/or arrangingCompany Merger Effective Time, syndicating(vii) as may be reasonably requested by Parent, consummating transfer or otherwise restructure its ownership of existing Subsidiaries, properties or other assets, in each case, pursuant to documentation reasonably satisfactory to Parent and obtaining the Company and effective as of or immediately prior to and conditioned on the occurrence of the Company Merger Effective Time, (viii) provide timely access to diligence materials, appropriate personnel and properties to allow sources of financing and their representatives to complete all due diligence, (ix) provide assistance with respect to the review and granting of mortgages and security interests in collateral for the Financing, and attempting to obtain any Alternative Debt Financing consents associated therewith, (collectivelyx) to the extent reasonably requested by a lender, the “Debt Financing”)attempt to obtain estoppels and certificates from tenants, including: lenders, managers, franchisors, ground lessors and counterparties to REAs in form and substance reasonably satisfactory to any potential lender, (ixi) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used cooperate in connection with the marketing repayment or defeasance of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers any existing indebtedness of the Company or any of its Subsidiaries who will be officers as of the Company Merger Effective Time including delivering such payoff, defeasance or similar notices under any existing loans of the Company or any of its Subsidiaries after Closing as reasonably requested by Parent, and (xii) to execute the extent reasonably requested by a lender, permit Parent and deliver any documentation in connection with the Debt Financing (its Representatives to conduct appraisal and environmental and engineering inspections of each real estate property owned and, subject to subclause obtaining required third party consents with respect thereto (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of which the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using use reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statementsobtain), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of leased by the Company or any of its Subsidiaries in light (provided, however, that (A) neither Parent nor its Representatives shall have the right to take and analyze any samples of COVID-19 any environmental media (including soil, groundwater, surface water, air or sediment) or any COVID-19 Measuresbuilding material or to perform any invasive testing procedure on any such property, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by (B) Parent shall schedule and coordinate all inspections with the Company and shall give the Company at least five (5) Business Days’ prior written notice thereof, setting forth the inspection that Parent or Merger Subits Representatives intend to conduct, cause and (C) the Company shall be entitled to have representatives present at all times during any directorsuch inspection); provided, officer however, that nothing herein shall require such cooperation to the extent it would unreasonably interfere with the business or employee operations of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) require the Company to agree to pay any fees, reimburse any expenses, or give any indemnities prior to the Company Merger Effective Time (except those that the Company is reimbursed for by Parent). None of the representations, warranties or covenants of the Company set forth in this Agreement shall not be required deemed to disclose any information to Parent apply to, or deemed breached or violated by, any of its Affiliates or any prospective lender or any their respective representatives if doing so would result the actions taken by the Company at the request of Parent set forth in this Section 6.15(a). Parent shall, promptly upon request by the waiver of any legal privilege or work product protection of any of Company, reimburse the Company for all reasonable out-of-pocket costs incurred by the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent Subsidiaries in accordance with performing their obligations under this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing6.15(a), and (vi) no Representative of indemnify the Company for any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by the Company or any of its Subsidiaries arising therefrom (and in the event the Mergers and the other transactions contemplated by this Agreement are not consummated, Parent shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, reimburse the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be reasonable out-of-pocket costs not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreementpreviously reimbursed).
Appears in 1 contract
Financing. (a) Prior to the Closing, the Company Entities shall use reasonable best efforts, and shall cause its Subsidiaries to use reasonable best efforts, and shall use reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, provide at ParentBuyer’s sole cost and expense, such commercially reasonable cooperation in connection with the arrangement of the Debt Financing, the proceeds of which shall be used by Buyer to provide to Parent all cooperation consummate the transaction contemplated hereby as may be reasonably requested by ParentBuyer, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms which shall consist of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: using commercially reasonable efforts to (i) assisting make appropriate officers, including officers with appropriate seniority and expertise, available for participation in, upon reasonable advance notice and at mutually agreeable times, a reasonable number of meetings, conference calls, lender due diligence presentations, sessions with rating agencies or other customary syndication activities, (ii) subject to the Confidentiality Agreement, furnish Buyer and Buyer’s lenders as soon as reasonably practicable after the date hereof with all financial statements and financial and operating information regarding the Company Entities to be used in the preparation of a confidential one or more information memorandum packages regarding the business, operations, financial projections and prospects of the Company Entities customary or reasonably necessary for the syndication of the Debt Financing, (iii) assist with the preparation, execution and delivery of any loan agreement, customary guarantees, pledge and security agreements, notes and other definitive financing documents as may be reasonably requested by Buyer (provided, that no obligation of the Company Entities under any such document or agreement shall be effective until the Closing), and provide Buyer with any information reasonably necessary to complete customary marketing materials to closing and perfection certificates as may be used required in connection with the marketing Debt Financing and other customary documents in connection therewith as may be reasonably requested by Buyer; (iv) assist with the preparations for the provision of, and obtaining of guarantees and the pledging of collateral and delivering original certificates with respect to all certificated securities (with transfer powers executed in blank), provided that no such guarantee or pledge will be effective until the Closing, (v) provide, at least five (5) Business Days prior to the Closing, all documentation and other information required by bank regulatory authorities under applicable “know-your-customer”, anti-money laundering rules and regulations, including the PATRIOT Act, reasonably requested by Buyer in writing at least ten (10) Business Days prior to the Closing, including a certification in relation to any Company Entity regarding individual beneficial ownership to the extent required by 31 C.F.R. §1010.230, (vi) facilitate the taking of all corporate, limited liability company or similar actions reasonably requested by Buyer to permit the consummation of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to permit the proceeds thereof to be made available to the Company at the Closing, (vii) as promptly as reasonably agreedpracticable (A) furnish Buyer with the Required Financing Information and (B) inform Buyer if, participation of representatives of senior management to the Knowledge of the Company Company, there are facts that would likely require the restatement of any financial statements comprising Required Financing Information for such financial statements to comply with GAAP, (which participation may be by videoconferenceviii) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary provide information required for Buyer to prepare pro forma financial information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions projections required to be delivered in connection with the Debt Financing; Financing (iv) permitting officers of provided that Seller and the Company Entities shall have no obligation to prepare or provide any of its Subsidiaries who will be officers of the Company pro forma financial statements or any of its Subsidiaries after Closing to execute projections), (ix) assist Buyer in obtaining corporate and deliver any documentation facilities ratings in connection with the Debt Financing and reasonably cooperate with the marketing efforts of Buyer and Buyer’s lenders (subject it being understood and agreed that no particular rating shall be required), (x) if required, request the Company’s independent accountants to subclause (iv) agree to the use of their audit reports relating to the Company Entities in connection with the syndication of the proviso belowNew Debt Financing, (xi) including periodically update any customary closing officer’s certificates Required Information provided to Buyer as may be necessary so that such Required Information is Compliant, and secretary’s certificates prepared by Parent (including certification xii) cooperate in the prepayment and termination of organizational authorization, organizational documents and good standing certificates) Indebtedness of the Company and its Subsidiariesrelease of Liens in connection therewith substantially concurrently with, and taking corporate action to authorize contingent upon the borrowing and guarantees of occurrence of, the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding Closing. Notwithstanding the foregoing, nothing in this Agreement (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in including this Section 6.17) or, in will require any such cooperation or efforts to the good faith judgment of the Company or any of its Subsidiaries, extent that it would (A) unreasonably interfere unreasonably with the ongoing business or operations of any of the CompanyCompany Entity, jeopardize the health and safety of (B) cause any employee of representation or warranty in this Agreement to be breached by the Company or Seller, (C) conflict with the Organizational Documents of any of its Subsidiaries in light of COVID-19 Company Entity or any COVID-19 Measuresapplicable Law or Order, cause (D) result in the contravention of, or that could reasonably be expected to result in a violation or breach of, or a default (with or without notice, lapse of time, or both) under, any condition Material Contract, (E) provide access to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of disclose information that the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Lawdetermines could, (ii) in the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would Company’s reasonable discretion, result in the waiver of any legal privilege privilege, violate any Law or work product protection breach any duty of confidentiality owed to any Person (provided that Company shall (at the Buyer’s sole cost and expense) use commercially reasonable efforts to (i) provide such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed) without violating or breaching, as applicable, such privilege, Law or duty or (ii) provide such information in a manner without violating or breaching, as applicable, such privilege, Law or duty), (F) require any Company Entity or any individual who is a member of the board of directors (or other similar governing body) (other than persons that are continuing in such role, and only to the extent such are effective contingent on the consummation of the Closing) of any Company Entity to pass resolutions or consents to approve, or authorize the execution of, the Debt Financing or any definitive documentation related thereto, (G) require any Company Entity to enter into any contract (except notices of prepayment and customary authorization letters), with respect to the Debt Financing that is effective prior to the Closing or that would be effective if the Closing does not occur or (H) require any Company Entity to provide solvency or similar certificate of the chief financial officer or similar representative of any Company Entity; provided, further, that (v) no personal liability shall be imposed on any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employeesmanagers, agents and Representatives shall employees or other representatives of the any Company Entity involved in the foregoing cooperation or efforts, (w) the Company Entities will not be required to authorize any corporate action of such Company Entity that would become effective or operative prior to the Closing, (x) the Company Entities will not be required to pay any commitment or other fee fees or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or otherwise incur any other liability expenses (except in connection with the performance of their obligations hereunder and subject to Section 6.17(b) below), liabilities or obligations in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (ivy) the Company shall Entities will not be required to execute prior prepare any projections or pro forma financial statements and (z) the Company Entities will not be required to the Closing deliver or cause to be delivered any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents opinion of counsel in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Enpro Industries, Inc)
Financing. Buyer acknowledges that the Debt Financing Commitments contemplate the funding of the transactions contemplated hereby using bridge financing. Buyer will use commercially reasonable efforts to negotiate definitive bridge loan documentation with its financing sources and otherwise prepare for the funding of the bridge facility. Additionally, Buyer shall use commercially reasonable efforts (including, (a) Prior to promptly after the Closingdate of this Agreement, commencing the Company shall use reasonable best efforts, and shall cause its Subsidiaries to use reasonable best efforts, and shall use reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement preparation of the Companynecessary offering circulars, at Parent’s sole cost private placement memoranda, prospectus, registration statement or other offering documents or marketing materials and expense, to provide to Parent all cooperation reasonably requested negotiating definitive loan documentation concerning the placement and syndication of the senior subordinated notes and the senior secured credit facilities as contemplated by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under Commitments, (b) commencing promptly thereafter the road show and syndication activities concerning the placement and syndication of the senior subordinated notes and the senior secured credit facilities as contemplated by the Debt Financing Commitments, and (c) accepting any changes in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining proposed financing as contemplated in any Alternative Debt Financing (collectively, Flex Letters or the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing flex provisions of the Debt Financing Commitments if such changes are necessary to complete financings) to perform and ratings agency presentations comply with all obligations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times conditions required by the Commitment Letters to be reasonably agreedperformed or satisfied by Buyer prior to, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions at and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior Date as necessary to obtain funding under the Closing Date) with all documentation and other information with respect Commitment Letters to consummate the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Datetransactions contemplated herein; provided, however, that notwithstanding if either the foregoinglead arranger or lead manager should advise Buyer that, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior due to the Closing then current market conditions, the activities contemplated by clause (b) should be delayed, then Buyer shall be entitled to delay the actions contemplated by clause (b) as necessary and shall undertake commercially reasonable efforts to restart the process when market conditions dictate. If all closing conditions contained in Article 9 (other than Section 9.1(f)) shall have been satisfied or waived, or are capable of being satisfied solely by delivery of prepared documents required by such conditions, Buyer will demand funding of the senior secured credit facilities and the senior subordinated bridge facility as expressly set forth contemplated by the Debt Financing Commitments on the first date thereafter on which Buyer shall have had for 30 consecutive days all financial statements and financial data required by Regulation S-X and Regulation S-K under the Securities Act (excluding the SDRC Financials) and customarily included in private placements under Rule 144A of the Securities Act to consummate an offering of senior subordinated notes on such proposed funding date. In the event that the financings contemplated by the Commitment Letters will not be available to consummate the transactions contemplated by this Section 6.17Agreement, Buyer shall (x) orpromptly notify Seller of such fact and (y) use commercially reasonable efforts, until the Termination Date, to obtain alternate financing for the transactions contemplated by this Agreement provided that the terms, conditions and costs of such financing are not less favorable to Buyer than those in the good faith judgment Commitment Letters ("ALTERNATIVE FINANCING"). Without the prior consent of the Company Seller, Buyer shall not permit or allow any of its Subsidiaries, interfere unreasonably with the business modification or operations of amendment to any of the CompanyCommitment Letters that could reasonably be expected to materially hinder, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee delay or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with more difficult the financing process as contemplated under this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)7.4.
Appears in 1 contract
Samples: Stock Purchase Agreement (UGS PLM Solutions Asia/Pacific INC)
Financing. NYSE Group and Holdco shall take such actions so that, as of the filing of the Offer, Holdco shall have (a) Prior to the Closingextent required by applicable Law in order to file the Offer with the AMF) sufficient funds or irrevocable and unconditional financing sources available to it to pay the aggregate cash consideration payable pursuant to the Offer. To the extent permitted by applicable Law, the Company shall use reasonable best efforts, Euronext and shall cause its Subsidiaries to shall use reasonable best efforts, and shall use reasonable best efforts to cause each of their respective officers, directors, employees and representatives, to assist and cooperate with NYSE Group and Holdco in connection with their Subsidiariesefforts to obtain the proceeds of any financing that NYSE Group and Holdco seek in connection with the Offer, including (i) causing appropriate officers and employees to be available, on a customary basis and on reasonable advance notice, to meet with prospective lenders and investors in meetings, drafting sessions, due diligence sessions, management presentations, road shows and sessions with rating agencies, (ii) assisting with the preparation of materials for rating agency presentations, business projections and financial statements (including those required by the SEC), and assisting NYSE Group and Holdco in preparing offering memoranda, private placement memoranda, prospectuses and similar documents, (iii) causing its independent accountants to provide reasonable assistance to NYSE Group and Holdco, including providing consent to NYSE Group and Holdco to use their audit reports and any reviews of interim period financial statements prepared under applicable IFRS standards relating to Euronext and its Subsidiaries and to provide any necessary “comfort letters,” (iv) using reasonable efforts to cause its attorneys to provide reasonable assistance to NYSE Group and Holdco, including to provide any necessary and customary legal opinions, (v) obtaining any necessary rating agencies’ respective Representativesconfirmations or approvals and (vi) executing and delivering any other requested certificates or documents. Euronext will provide to NYSE Group and Holdco and its financing sources, if any, as promptly as practicable the audited, unaudited and pro forma and other financial information reasonably requested by NYSE Group or Holdco, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and case prepared in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly standards set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive applicable financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter or as in effect on the date of this Agreement)otherwise reasonably requested by NYSE Group or Holdco.
Appears in 1 contract
Financing. (a) Prior to During the ClosingPre-Closing Period, the Company shall use reasonable best effortsprovide, and shall cause its Subsidiaries the Target Companies to use reasonable best effortsprovide, and shall use commercially reasonable best efforts to cause their respective representatives, including legal and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expenseaccounting advisors, to provide commercially reasonable cooperation requested by Parent in connection with the Financing and the other transactions contemplated by this Agreement (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Target Companies), including (i) participation in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, (ii) preparing and providing access to due diligence materials reasonably required in connection with the Financing, (iii) assisting with the preparation of materials for offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the Financing; provided, that any such memoranda or prospectuses shall contain disclosure and financial statements with respect to the Target Companies or the Surviving Corporation reflecting the Surviving Corporation and/or its Subsidiaries as the obligor, (iv) at Closing executing and delivering any pledge and security documents, other definitive financing documents, or other certificates or documents as may be reasonably requested by Parent all cooperation (including a certificate of the chief financial officer of the Target Companies with respect to solvency matters as of the Effective Time and consents of accountants for use of their reports in any materials relating to the Financing), (v) reasonably facilitating the pledging of collateral at Closing, (vi) furnishing Parent and its Financing sources (the “Financing Sources”) as promptly as practicable with such financial and other pertinent information regarding the Target Companies as may be reasonably requested by Parent, including all financial statements and financial data of type and form customarily included in connection with arranging, syndicating, consummating and obtaining the Debt Financing private placements under and in accordance with the terms Rule 144A of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required Securities Act to consummate the Debt Financing as offerings of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested debt securities contemplated by the Debt Financing Sources in writing Letter at least ten Business Days prior to the Closing Date; time during the Company’s fiscal year such offerings will be made, (vii) using reasonable best efforts providing assistance to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business Merger Sub as Parent or its Debt Financing Sources they may reasonably request in connection with the Debt satisfaction of the conditions set forth in the Financing Letter, (provided that in no event shall the Companyviii) using commercially reasonable efforts to obtain accountants’ comfort letters, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements)as reasonably requested by Parent, (ix) assisting in using commercially reasonable efforts to provide monthly financial statements (excluding footnotes) within thirty (30) days of the preparation end of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective each month prior to the Closing Date, (other than as expressly set forth in this Section 6.17x) or, taking all actions reasonably necessary to (A) permit the prospective lenders involved in the good faith judgment Financing to evaluate the Target Companies’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Lawestablishing collateral arrangements, (iiB) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents at Closing establish bank and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees accounts and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability blocked account agreements and lock box arrangements in connection with the Debt Financing or foregoing, and (C) at Closing provide or agree to provide any indemnity insurance certificates and endorsements as required by prospective lenders involved in connection the Financing, (xi) reasonably assisting Parent with any Debt Financing or any presentation to the SEC with regard to the recording of the foregoing that would be effective prior Merger as a recapitalization for financial reporting purposes in accordance with GAAP and reasonably cooperating in good faith with Parent, if so requested by Parent, in order to develop alternative means of recording the Merger as a recapitalization for financial reporting purposes in accordance with GAAP and (xii) taking all corporate actions, subject to the occurrence of the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing reasonably necessary to permit the consummation of the Debt Financing (except for any corporate actions and to permit the proceeds thereof to be made available to the Surviving Corporation immediately following the Effective Time; provided, that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries Target Companies shall not be required to make approve or execute any certifications that it does not reasonably in good faith believe agreements, certificates or other documents relating to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, Financing prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)Effective Time.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Standard Parking Corp)
Financing. (a) Prior to the Closing, the The Company shall use reasonable best effortsshall, and shall cause the Company Subsidiaries and its Subsidiaries to use reasonable best efforts, and shall use reasonable best efforts to cause their and their Subsidiaries’ respective RepresentativesRepresentatives to, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation cooperate as reasonably requested by Parent, in connection with arranging, syndicating, consummating Cap Rock Holding and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute take such actions as Cap Rock Holding and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the procurement and consummation of the transactions contemplated by the Debt Commitment Letter and other incurrences of debt by Cap Rock Holding in connection with the Exchange (collectively, the “Financing”) and the repayment of existing indebtedness of, and release of Liens on the assets and property of, the Company and the Company Subsidiaries, which cooperation shall include provision of such information regarding the Company and the Company Subsidiaries as is reasonably requested by the financial institution providing the Financing (provided that including a list of all agreements and instruments of the nature set forth in no event shall Section 3.16(b)(i) in effect as of the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statementsClosing Date), (ix) assisting in review and consultation with respect to the preparation of customary definitive financing all agreements, offering memoranda and other documentation (including review of schedules for completeness) required in connection with the Financing, attendance and participation at meetings by telephone and in person with respect to syndication and marketing as reasonably requested, and execution and delivery by the Company and the completion Company Subsidiaries and its and their officers, attorneys and accountants of any schedulesagreements, exhibits customary certificates, legal opinions or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations other documents and instruments relating to borrowings by the Company concurrent with the Effective Time, guarantees, the pledge of discharge collateral and other matters ancillary to the Financing as may be delivered at Closing to allow for reasonably requested by Parent in connection with the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing DateFinancing; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment no obligation of the Company or any of its SubsidiariesCompany Subsidiary under any such agreement, interfere unreasonably with certificate, document or instrument will be effective until the business or operations of any of the Company, jeopardize the health Effective Time and safety of any employee none of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall Subsidiary will be required to pay any commitment or other similar fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability liability, other than out-of-pocket expenses incidental to such cooperation to be reimbursed by Parent, in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the ClosingEffective Time. Parent shall reimburse, (iv) the Company shall not be required or cause its affiliates to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In additionreimburse, the Company shall furnish Parent reasonably promptly (and, in any event, for its reasonable out-of-pocket fees and expenses incurred pursuant to this Section 6.12. To the extent not provided prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement), the Company shall deliver to Cap Rock Holding, within five business days of such data being available to the Company’s management, monthly financial data generated by the Company’s internal accounting systems for use by senior and financial management for any fiscal month ending after the date of the most recently ended fiscal quarter of the Company for which financial statements are publicly available and on or prior to 30 days before the Closing Date. The closing of the Financing shall not be a condition to the Closing.
Appears in 1 contract
Samples: Agreement and Plan of Share Exchange (Semco Energy Inc)
Financing. (a) Prior to the ClosingEffective Time, the Company shall use reasonable best effortsSeller and its representatives shall, and shall cause its the Company and the Company Subsidiaries to use reasonable best efforts, and shall use reasonable best efforts to cause their and their Subsidiaries’ respective RepresentativesRepresentatives to, in each case, reasonably cooperate with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used Purchaser in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; Financing, including using commercially reasonable efforts to (iii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) participate in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, presentations and sessions with rating agencies and prospective lenders, if any; (ii) provide information reasonably requested by Purchaser relating to such financing, including financial and other pertinent information regarding the Company as well as a reasonable number of meetings with may be reasonably requested by Purchaser, including the financial information required to be delivered under the Debt Financing SourcesCommitment Letter; provided, however, that it is understood and agreed that Seller shall not be required to deliver any financial statements not required by Section 5.06; (iii) providing customary information reasonably cooperating with the execution and assistance delivery of any pledge and security documents and other definitive financing documents on the terms contemplated by the Debt Commitment Letter or other certificates as may be reasonably necessary to assist Parent and its counsel with obtaining requested by Purchaser or otherwise reasonably facilitating the customary legal opinions required to be delivered pledging of collateral in connection with the Debt Financing; (iv) permitting officers of at least five days prior to the Closing Date, provide all documentation and other information about the Company or any of its Subsidiaries who will be officers of and each Company Subsidiary as is reasonably requested in writing by Purchaser at least ten days prior to the Company or any of its Subsidiaries after Closing to execute and deliver any documentation Date which is in connection with the Debt Financing (subject and relates to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act; (v) assist Purchaser and Lenders in the preparation of all information memoranda (including providing customary authorization letters), lender presentations, rating agency presentations, and similar documents in connection with the Debt Financing; (vi) use commercially reasonable efforts to obtain consents from the accountants of the Business for the use of their reports in materials related to the Debt Financing; and (vii) take all corporate actions, and cause the Company and the Company Subsidiaries to take all corporate actions, in each case, case as reasonably requested by Purchaser, to permit the consummation of the Debt Financing Sources in writing at least ten Business Days and direct borrowing or incurrence of all of the proceeds of the Debt Financing by the Company or a Company Subsidiary immediately following the Closing and to permit the proceeds thereof to be made available to the Company or a Company Subsidiary, as applicable; provided, however, that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and the Company Subsidiaries prior to the Closing DateEffective Time; and provided, further, that, notwithstanding any of the foregoing, (viii) using reasonable best efforts neither Seller nor any of its representatives shall be required to cooperate execute or deliver any certificate, agreement, document or other instrument in connection with Parent to satisfy the conditions precedent Debt Financing, (ii) no action, liability or obligation of the Company or any of the Company Subsidiaries or any of their respective Representatives under any certificate, agreement, arrangement, document or instrument relating to the Debt Financing that are within shall be effective prior to the control Effective Time, (iii) neither Seller nor any of its representatives shall at any time, and none of the Company, the Company or its Subsidiaries; (viii) providing such other reasonably available financial Subsidiaries and other information with respect their respective Representatives shall prior to the Company and its business as Parent Effective Time, (A) be required to bear any cost or its Debt Financing Sources may reasonably request expense or to pay any commitment or other similar fee or make any other payment, other than reasonable out-of-pocket expenses incidental to cooperation pursuant to this Section 5.07 to be reimbursed by Purchaser pursuant to this Section 5.07, in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide or any pro forma financial information alternative financing) or statements), (ix) assisting in the preparation any of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (iB) nothing herein shall require the Company, its Subsidiaries incur or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur have any liability or cause obligation under any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent loan agreement or any of its Affiliates related document or any prospective lender other agreement or document related to the Debt Financing (or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17alternative financing) or (C) incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing (or any of the foregoing that would be effective prior to the Closing, alternative financing) and (iv) nothing in this Agreement shall require the board of directors of Seller, the Company shall not be required or any Company Subsidiary to execute prior take any action to approve the Closing Debt Financing (or any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents alternative financing) in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions transactions contemplated by this Agreement prior to the Closing to permit Effective Time; provided that the consummation board of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative directors of the Company or any such Company Subsidiary (to the extent comprised solely of its Subsidiaries shall be required to make representatives of Purchaser) may approve the Debt Financing (or any certifications that it does not reasonably alternative financing) as of the Effective Time. Purchaser shall, promptly upon request by Seller, reimburse Seller for all reasonable and documented out-of-pocket costs incurred by Seller in good faith believe to be trueconnection with such cooperation and indemnify Seller for any Loss incurred by Seller arising therefrom (other than arising from information from Seller). In additionFor the avoidance of doubt, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with preparation and delivery of the financial statements identified required by Section 5.06 shall not be covered by the expense reimbursement or indemnification obligations in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)Section 5.07.
Appears in 1 contract
Samples: Stock Purchase Agreement (Catalent Pharma Solutions, Inc.)
Financing. (a) Prior to the ClosingEffective Time, the Company shall use reasonable best effortsprovide, and shall cause its Subsidiaries to use reasonable best effortsprovide, and shall use its reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority including legal and expertise in the good faith judgement of the Company, at Parent’s sole cost and expenseaccounting Representatives, to provide to Parent provide, all cooperation reasonably requested by Parent, Parent in connection with arrangingthe arrangement of the financings contemplated by any Financing Commitments, syndicating, consummating and obtaining including the Debt Financing under and in accordance (provided that such requested cooperation does not unreasonably interfere with the terms ongoing operations of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating Company and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”its Subsidiaries), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies; (ii) assisting with the preparation of materials for rating agency meetingspresentations, as well as a reasonable number of meetings with Debt Financing Sources; offering documents, private placement memoranda, bank information memoranda, prospectuses, marketing materials and similar documents (iiiincluding MD&A and business description) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of provided, that any private placement memoranda or prospectuses in relation to high yield debt securities need not be issued by the Company or any of its Subsidiaries who will be officers of Subsidiaries; provided, further, that any such memoranda or prospectuses shall contain disclosure and financial statements with respect to the Company or any of the Surviving Corporation reflecting the Surviving Corporation and/or its Subsidiaries after Closing to execute as the obligor; (iii) executing and deliver delivering any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates pledge and secretary’s certificates prepared security documents, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a the chief financial officer of the Company with respect to solvency matters of the Company on a consolidated basis and consents of accountants for use of their reports in a customary form required any materials relating to consummate the Debt Financing as Financing) and otherwise reasonably facilitating the granting, pledging, recording and perfection of the Closing Datecollateral; (viiv) furnishing Parent and its financing sources as promptly as practicable (and in any event at least five no later than 25 Business Days prior to the Closing End Date) with all documentation financial and other pertinent information with respect to regarding the Company as may be reasonably requested by Parent, including all financial statements and financial and other data of the type that would be required by regulatory authorities Regulation S-X and Regulation S-K under applicable “know your customer” the Securities Act of the type and anti-money laundering rules and regulations, including without limitation form customarily included in private placements under Rule 144A of the PATRIOT Act, and in each case, requested Securities Act to consummate the offerings of securities contemplated by the Debt Financing Sources Commitments at the time during the Company’s fiscal year such offerings will be made (the “Required Financial Information”); (v) using commercially reasonable efforts to assist Parent in writing at least ten Business Days prior connection with the satisfaction of the conditions of the Debt Financing Commitment, (vi) providing monthly financial statements (excluding footnotes) within the time frame, and to the Closing Dateextent, the Company prepares such financial statements; (vii) using reasonable best efforts taking all actions reasonably necessary to cooperate (A) permit the prospective lenders involved in the Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (B) establish blocked account agreements in connection with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiariesforegoing; (viii) providing such entering into one or more credit or other agreements on terms reasonably available financial and other information with respect satisfactory to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt financing contemplated by the Financing (provided that in no event shall Commitments immediately prior to the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing DateEffective Time; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative none of the Company or any of its Subsidiaries shall be required to make enter into any certifications that it does not purchase agreement for any high yield debt financing (other than bridge financing); and (ix) taking all corporate actions, subject to the occurrence of the Closing, reasonably in good faith believe requested by Parent to be true. In additionpermit the consummation of the financings contemplated by the Financing Commitments (including the Debt Financing) and the direct borrowing of all of the proceeds of, the Company shall furnish Parent reasonably promptly incurrence of the debt contemplated by, and the issuance of the securities contemplated by, the Financing Commitments (andincluding the Debt Financing), in including any eventhigh yield debt and any preferred financing, by the Surviving Corporation concurrently or immediately following the Effective Time; provided, that prior to the Closing) Effective Time neither the Company nor any of its Subsidiaries shall be required to pay any commitment or other similar fee or incur any other cost or expense that is not simultaneously reimbursed by Parent in connection with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (prior to the Effective Time. Parent or Merger Sub shall, promptly upon request by the analogous provision Company, reimburse the Company for all reasonable and documented out-of-pocket costs incurred by the Company or any of its Subsidiaries in connection with such cooperation and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives for and against any commitment letter for any Alternative and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the Debt Financing (other than to the extent such losses arise from the willful misconduct of the Company, any of its Subsidiaries or their respective Representatives) and any information utilized in connection therewith (other than information provided by the Company or any of its Subsidiaries). The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided, that such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the conditions set forth in such analogous provision Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries and its or their marks. All non-public or otherwise confidential information regarding the Company obtained by Parent, Merger Sub or their Representatives pursuant to this Section 7.10(a) shall be not more burdensome to kept confidential in accordance with the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)Confidentiality Agreements.
Appears in 1 contract
Financing. (a) Prior to the Closing, the The Company and its Subsidiaries shall use their commercially reasonable best efforts, efforts and shall cause its Subsidiaries to use reasonable best efforts, and shall use reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, in each case, cooperate with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining agents and representatives in order for Parent to satisfy the customary legal opinions required conditions and obligations contained in the Financing Commitment Letter, including, without limitation, providing reasonable access to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute books and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates records, officers, directors, agents and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) other representatives of the Company and its Subsidiaries, providing all financial statements and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company that would be required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsin an offering of debt securities on a Form S-1, including without limitation three full years of financial statements audited by a "big four" auditing firm, any interim period financial statements that would be required by the PATRIOT ActSecurities and Exchange Commission ("SEC") (reviewed in accordance with Statement of Accounting Standards (SAS) 100), and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements)statements that would be required by the SEC in the Form S-1, (ix) assisting in assistance and cooperation with the preparation of standard confidential memoranda and related materials, providing customary definitive financing documentation certification to placement agents and auditors, participating in any "road shows" or lenders meetings, using commercially reasonable efforts to cause the completion of Company's accountants to provide comfort letters to any schedulesunderwriters or initial purchasers consistent with SAS 72 (as amended), exhibits including without limitation standard negative assurance on any interim period or annexes thereto (including a customary perfection certificate) pro forma financial statements, and (x) obtain payoff letters, Lien terminations marketing any securities and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Datesyndicating bank loans; provided, however, that notwithstanding anything to the foregoingcontrary set forth herein, (i) nothing herein Parent and/or Acquisition Sub shall require not distribute any confidential memoranda, bank presentations or related documents or materials or otherwise disclose any confidential information with respect to the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective EXECUTION VERSION Affiliates prior to the Closing (other than as expressly set forth in this Section 6.17) or, in Date without the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any prior written consent of the Company, jeopardize the health and safety of except for any employee of the Company disclosure to Parent's agents or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or terms and conditions of the Confidentiality Agreement, provided such agents and/or representatives prior to such disclosure agree to provide any indemnity in connection with any Debt Financing or any be bound by the terms and conditions of the foregoing that would be effective prior Confidentiality Agreement. Notwithstanding anything to the Closingcontrary set forth herein, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take enter into any corporate actions loan agreement, underwriting or note purchase or placement agreement, registration rights agreement, registration statement, indenture, pledge or security agreement or any related documents or certificates prior to the Closing Date, except the Company shall not unreasonably withhold or delay its agreement to permit sign a placement agreement with an initial purchaser of debt securities to be sold by the consummation Company in accordance with Rule 144A of the Debt Financing (except for Securities Act of 1933, as amended, pursuant to an offering memorandum or other similar materials reasonably acceptable to the Company; provided, however, that such placement agreement shall be reasonably acceptable to the Company and shall provide that neither the Company, nor any corporate actions of its Subsidiaries shall have any Liability thereunder prior to the Closing arising out of, resulting from or pursuant to such agreement and that are conditioned upon none of the Closing)respective officers, and (vi) no Representative directors or Affiliates of the Company or any of its Subsidiaries shall be required have any Liability at any time arising out of, resulting from or pursuant to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Autocam International LTD)
Financing. (a) Prior From and after the date hereof and prior to the ClosingEffective Time, or, if earlier, the termination of this Agreement in accordance with Article VIII, the Company shall use reasonable best effortsprovide, and shall cause its Subsidiaries to use reasonable best effortsto, and shall use its reasonable best efforts to cause their its and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority including legal and expertise in the good faith judgement of the Company, at Parent’s sole cost and expenseaccounting, to provide to Parent all cooperation reasonably requested by Parent, Parent in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms arrangement of the Debt Financing Commitment Letter and/or arranging(provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”taken as a whole), including: including (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreedparticipation, including participation of representatives of senior by management of the Company (which participation may be by videoconference) with appropriate seniority and expertise, on a timely basis in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies; (ii) assisting Parent and the Debt Financing Sources with the preparation of materials for rating agency meetingspresentations, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary bank information memoranda, business projections, marketing materials and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions similar documents required to be delivered in connection with the Debt Financing; (iviii) permitting officers executing and delivering any pledge and security documents, guarantees, currency or interest rate hedging arrangements, other definitive financing documents or other certificates, legal opinions or documents as may be reasonably requested by Parent (including a certificate of the chief financial officer of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company Subsidiary with respect to solvency matters and consents of auditors for use of their reports in any materials relating to the Debt Financing) and otherwise reasonably facilitating the pledging of collateral (including obtaining third party consents and estoppels); provided, that, in each case, any such document, certificate, opinion or pledge shall be conditioned on Closing and shall only be effective at or after the Effective Time; (iv) furnishing Parent and the Debt Financing Sources as promptly as practicable with all Required Information and as promptly as practicable, informing Parent if the Company or its Subsidiaries have actual knowledge of any facts that would be reasonably likely to require the restatement of any financial statements comprising a customary form required portion of the Required Information; (v) taking all actions reasonably necessary to (A) permit the Debt Financing Sources to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (B) effective on or after the Effective Time, establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing; (vi) taking all corporate actions, and other actions that are reasonably requested by Parent and within the control of the Company or its Subsidiaries, to satisfy any requirements necessary to consummate the Debt Financing as and the direct borrowing or incurrence of all of the Closing Dateproceeds of the Debt Financing by Parent or the Company, as applicable; provided that the corporate actions described in clause (vi) shall be conditioned on Closing and shall only be effective on or after the Effective Time; (vii) promptly furnishing to Parent promptly (and in any event the Debt Financing Sources at least five four (4) Business Days prior to the Closing Date) Effective Date with all documentation and other information with respect to the Company required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act, and relating to the Company or its Subsidiaries, in each case, case reasonably requested by the Debt Financing Sources in writing Parent at least ten seven (7) Business Days prior to the Closing Effective Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available assisting Parent in connection with the preparation of pro forma financial information and other information with respect to pro forma financial statements of the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with Subsidiaries of the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be type required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that by the Debt Financing Commitment Letter requires or necessary or reasonably required by Debt Financing Sources to be paid off, discharged or terminated on the Closing Dateincluded in any customary marketing materials; provided, however, provided that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee none of the Company or any of its Subsidiaries in light or Representatives shall be required to actually prepare any such pro forma financial information; and (ix) providing customary authorization letters to the Debt Financing Sources authorizing the distribution of COVID-19 information to prospective lenders or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach investors and containing customary representations that the public side versions of this Agreement by Parent or Merger Sub, cause any director, officer or employee of such documents do not include material non-public information about the Company or its Subsidiaries to incur any liability or cause any breach their securities and the accuracy of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result contained in the waiver of any legal privilege or work product protection of any of disclosure and the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative marketing materials. None of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, pay prior to the Closing) Effective Time any commitment or other similar fee in connection with the financial statements identified Debt Financing that is not promptly (within five (5) Business Days of delivery of documentation evidencing such cost or expense) reimbursed by Parent. Parent shall on the earlier of the Effective Date and the termination of this Agreement, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs incurred by the Company or its Subsidiaries in paragraphs 6 connection with such cooperation and 7 of Exhibit C shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all liabilities and Damages suffered or incurred by them in connection with the arrangement of the Debt Financing Commitment Letter and any information utilized in connection therewith (other than information provided by or on behalf of the Company or the analogous provision Subsidiaries), in each case, other than to the extent any commitment letter for of the foregoing arises from the bad faith, gross negligence or willful misconduct of, or material breach of this Section 6.8 by, the Company or any Alternative Debt Financing of its Subsidiaries or their respective Representatives (provided that the conditions reimbursement and indemnification obligations of Parent set forth in this sentence and in Section 6.14 are referred to, collectively, as the “Reimbursement Obligations”). The Company hereby consents to the use of its and its Subsidiaries’ trademarks and logos in connection with the Debt Financing, provided that such analogous provision trademarks and logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries and its or their trademarks or logos. All non-public or otherwise confidential information regarding the Company obtained by Parent or its Representatives pursuant to this Section 6.8(a) shall be not more burdensome kept confidential in accordance with the Confidentiality Agreement; provided, however, that (x) such information may be shared on a confidential basis with any actual or prospective Debt Financing Sources, their representatives and Affiliates in connection with the Debt Financing and (y) Parent, its Representatives and the Debt Financing Sources shall be permitted to disclose information as necessary and consistent with customary practices in connection with the Debt Financing so long as Parent and its Representatives reasonably cooperate with the Company in any respect than those contained in order to permit the Debt Financing Commitment Letter as in effect on Company to comply with its obligations under applicable Law relating to the date disclosure of this Agreement)such confidential information.
Appears in 1 contract
Financing. (a) Prior to the ClosingClosing Date, the Company shall use reasonable best effortsSellers will, and shall will cause its the Companies and the Company Subsidiaries to use reasonable best effortsto, and shall will use their commercially reasonable best efforts to cause their respective Affiliates, attorneys and their Subsidiaries’ respective Representativesother agents or representatives to, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent Purchaser all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used Purchaser in connection with the marketing arrangement of the Debt Financing, including, without limitation, (i) permitting Purchaser and the prospective lenders involved in the Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) access during normal business hours, upon reasonable prior notice and at times notice, to be reasonably agreed, participation of representatives of senior management all of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessionsproperties, drafting sessions books, Contracts, personnel and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers records of the Companies and Company Subsidiaries or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior otherwise related to the Closing Date; (v) furnishing a certificate Business as Purchaser may reasonably request, including to evaluate the Companies’ and Company Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing establishing collateral arrangements as of the Closing Date; (viii) furnishing Parent promptly (and in any event at least five Business Days prior using commercially reasonable efforts to assist Purchaser to establish or maintain, effective as of the Closing Date) with all documentation , bank and other information accounts and blocked account agreements and lock box arrangements in connection with respect the Financing; (iii) using commercially reasonable efforts to assist Purchaser to obtain waivers, consents, estoppels and approvals from other parties to material leases, encumbrances and Contracts to which any Company or any Company Subsidiary is a party and to arrange discussions among Purchaser and the Company required by regulatory authorities under applicable “know your customer” prospective lenders in connection with the Financing with other parties to material leases, encumbrances and anti-money laundering rules and regulations, including without limitation Contracts as of the PATRIOT Act, and in Closing Date; (iv) providing monthly financial statements (excluding footnotes) within fifteen (15) days of the end of each case, requested by the Debt Financing Sources in writing at least ten Business Days month prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any taking all corporate actions prior to by the Closing Companies and Company Subsidiaries reasonably requested by Purchaser that are necessary or customary to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)Financing.
Appears in 1 contract
Samples: Equity Interest Purchase Agreement (YRC Worldwide Inc.)
Financing. (a) Prior to CAG and the Closing, the Company CTG Companies shall use reasonable best effortscooperate, and shall cause its Subsidiaries to use reasonable best efforts, and shall use reasonable best efforts to will cause their respective officers, directors, employees, agents and their Subsidiaries’ respective Representatives, in each caseother Representatives and advisors to cooperate, with appropriate seniority Investor and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation Lenders in connection with the Debt Financing and the Equity Financing, as may be reasonably requested by Investor, including (a) participation (upon reasonable advance notice) in meetings, presentations, drafting sessions and due diligence sessions, (b) furnishing Investor and the Lenders with financial (including financial statements prepared in accordance with GAAP and including those required to be delivered pursuant to the written commitment for the Debt Financing delivered to CAG) and other pertinent information regarding the LLCs, the CTG Companies and the CTG Business in form reasonably requested by Investor, (c) providing and executing documents as may be reasonably requested by the investors and the Lenders; (d) taking all corporate actions, subject to subclause (iv) the occurrence of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared Closing, reasonably requested by Parent (including certification of organizational authorization, organizational documents and good standing certificates) the Investor to permit consummation of the Company Equity Financing, the Debt Financing and its Subsidiaries, and taking corporate action to authorize the direct borrowing and guarantees or incurrence of all of the proceeds of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request Freebird II in connection with the Debt Financing Closing; and (e) reviewing and commenting on any information or other memoranda prepared and/or distributed in connection with the syndication, including confirming in the case of any public-side information memoranda that no material non-public information is contained therein (it being understood that any proposed public-side disclosure is subject to the rights of CTG under the existing confidentiality agreement); provided, that neither CAG, the LLCs or any of the CTG Companies will be required to execute any pledge, security document, financing document or other instrument that would encumber any of the CTG Business Assets and that would be effective at any time prior to the Closing. Notwithstanding anything in this Agreement to the contrary, none of the CAG Parties or any of their respective Subsidiaries shall be required to provide or continue any financial or bank guarantees or other forms of financial commitment (including, without limitation, credit support) to Investor, the LLCs or any of their Subsidiaries; provided that to the extent any such guarantees or other forms of financial commitment cannot be replaced at reasonable cost (it being understood that the cost of any requested letters of credit shall be deemed reasonable) after Investor uses all commercially reasonable efforts to effect or arrange such replacement, the CAG Parties shall continue such guarantees or other forms of financial commitment following the Closing subject to receipt of a letter of credit satisfactory to CAG in an amount that is not less than the amounts subject to such guarantees and financial commitments or otherwise committed by the CAG Parties or any of their respective Subsidiaries; and provided further that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment continued guarantees or other fee or make any other payment (other than fees and costs which are reimbursed forms of financial commitment by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing CAG Parties or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodiesSubsidiaries extend beyond the duration (without giving effect to any post-Closing extension, whether effected by action or inaction on the part of any Party) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative applicable guarantee or other form of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)at Closing.
Appears in 1 contract
Samples: Contribution and Equity Interest Purchase Agreement (Conagra Foods Inc /De/)
Financing. (a) Prior to the Closing, the Company shall use reasonable best effortsshall, and shall cause its Subsidiaries to use reasonable best effortsto, and shall use reasonable best efforts to cause their the respective officers, employees, consultants and their Subsidiaries’ respective Representativesadvisors, in each caseincluding legal and accounting advisors, with appropriate seniority and expertise in the good faith judgement of the CompanyCompany and its Subsidiaries to, at Parent’s sole cost and expense, to provide to Parent all such cooperation as may be reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used Parent in connection with the marketing arrangement of the Debt Financing Financing, including (i) participation in meetings, presentations, road shows, due diligence sessions and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; sessions with rating agencies, (ii) upon reasonable prior notice assisting with the preparation of financial information and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and other materials for rating agency meetingspresentations, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary offering documents, private placement memoranda, registration statements, bank information memoranda, prospectuses, business projections and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions similar documents required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing and providing all representation letters and other materials requested by its independent accountants for the preparation and use of such financial information as contemplated by this Section 6.9(a), (subject iii) causing its independent accountants to subclause provide assistance and cooperation to Parent, including participating in drafting sessions and accounting due diligence sessions, assisting in the preparation of any pro forma financial statements to be included in the documents referred to in clause (ii) above, providing consent to Parent to use their audit reports relating to the Company and providing any necessary “comfort letters”, (iv) of assisting in the proviso below) negotiation of, and executing and delivering, definitive financing documents, including any customary closing officer’s certificates pledge and secretary’s certificates prepared security documents, and certificates, legal opinions, management representation letters or other documents, to the extent reasonably requested by Parent (including certification certificates of organizational authorizationthe chief financial officer of the Company or any Subsidiary with respect to solvency matters and consents of accountants for use of their reports in materials relating to the Debt Financing) and otherwise reasonably facilitating the pledging of collateral, organizational documents (v) providing reasonable access by Parent and good standing certificatesany Debt Financing or Alternative Financing sources, and their respective officers, employees, consultants and advisors (including legal, valuation, and accounting advisors) to the books and records, properties, officers, directors, agents and Representatives of the Company and its Subsidiaries, (vi) obtaining surveys and title insurance reasonably requested by Parent, (vii) as promptly as practicable, furnishing to Parent and its Debt Financing or Alternative Financing sources with all financial and other pertinent information regarding the Company and its Subsidiaries reasonably requested by Parent to consummate the Debt Financing, including all historical and pro forma financial statements and financial data regarding the Company and its Subsidiaries, in each case of the scope, type and form (A) that is required by the Securities Act (including Regulations S-K and S-X thereunder and other accounting rules and regulations of the SEC) for inclusion in a registration statement to be filed with the SEC and (B) that is otherwise customarily included in private placement memoranda relating to private placements under Rule 144A of the Securities Act and bank information memoranda, in each case at the time during the Company’s (or such segment’s) fiscal year such offerings will be made (all such information described in this clause (vii), the “Required Financial Information”), (viii) taking all actions necessary to (A) permit the prospective lenders involved in the Debt Financing to evaluate the Company’s assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (B) establish bank and other accounts and blocked account Contracts and lock box arrangements in connection with the foregoing, and (ix) taking all corporate action actions necessary to authorize the borrowing and guarantees permit consummation of the Debt Financing; provided, provided that any of the foregoing nothing herein shall not require the adoption of any corporate resolutions or actions prior such cooperation to the Closing Date; (v) furnishing a certificate of a financial officer of extent it would interfere unreasonably with the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control business or operation of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect . The Company hereby consents to the Company use of its and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents ’ logos in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement).
Appears in 1 contract
Financing. (a) Prior to the ClosingEffective Time, the Company shall use reasonable best effortsprovide, and shall cause its Subsidiaries to use reasonable best effortsto, and shall use its reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, in each caseincluding legal and accounting, with appropriate seniority and expertise in the good faith judgement of the Companyto, at Parent’s sole cost and expenseexpense for any and all out-of-pocket expenses, to provide to Parent all cooperation reasonably requested by Parent, in connection Parent with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used reasonable notice in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; Financing, including (iii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of meetings, presentations, due diligence sessions, drafting sessions, road shows and sessions and with rating agencies, (ii) assisting with the preparation of materials for rating agency meetingspresentations, as well as a reasonable number of meetings with Debt Financing Sources; offering documents, private placement memoranda, bank information memoranda, prospectuses, business projections and financial statements (iiiincluding those required by the SEC) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions similar documents required to be delivered in connection with the Debt Financing; (iv) permitting officers of , provided that neither the Company or nor any of its Subsidiaries who will needs to be officers the issuer of any such presentations, documents, memoranda or prospectuses, (iii) furnishing Parent and its Financing sources with readily-available historical financial and other pertinent information regarding the Company as may be reasonably requested by Parent, including all historical financial statements and financial data of the Company or any type required by Regulation S-X and Regulation S-K under the Securities Act and of its Subsidiaries after Closing the type and form customarily included in private placements under Rule 144A of the Securities Act, to execute and deliver any documentation use in connection with the Debt Financing or any other financing transaction executed in connection with the transactions contemplated hereby (subject to subclause the “Required Financial Information”), (iv) using commercially reasonable efforts to obtain accountants’ comfort letters, legal opinions, surveys, affidavits and title insurance as may be requested by Parent or the lenders under the Debt Financing Commitments, (v) using commercially reasonable efforts to provide monthly financial statements (excluding footnotes) within 25 days of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification end of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions each month prior to the Closing Date; , if and in the form now currently prepared by the Company, (vvi) furnishing executing and delivering, as of the Effective Time, any pledge and security documents, other definitive financing documents, or other certificates, legal opinions or documents, as may be reasonably requested by Parent (including a certificate of a financial officer the Chief Financial Officer of the Company Surviving Corporation or any Subsidiary thereof with respect to solvency matters and consents of accountants for use of their reports in a customary form required any materials relating to consummate the Debt Financing) and otherwise reasonably facilitating the pledging of collateral (including cooperation in connection with the pay-off of existing indebtedness and the release of related Liens), (vii) taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (B) so long as of not effective until on or after the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation Effective Time, establish bank and other information accounts and blocked account agreements and lock box arrangements in connection with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsforegoing, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (viiviii) using reasonable best efforts to cooperate obtain waivers, consents, estoppels and approvals from other parties to material leases, encumbrances and contracts to which any Subsidiary of the Company is a party and to arrange discussions among Parent, Merger Sub and their financing sources with Parent other parties to satisfy material leases, encumbrances and contracts as of the conditions precedent Effective Time, and (ix) taking all corporate actions reasonably necessary to authorize the consummation of the Debt Financing and to permit the proceeds thereof to be made available (it being understood that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with greatest extent practicable, the Debt Financing (provided that in no event actions contemplated by this Section 7.9(a)(ix) shall the Company, its Subsidiaries, and their respective Representatives not be required to provide any pro forma financial information or statements)be taken until immediately prior to, (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedulesunless subject to, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires Company shall have satisfied its obligations pursuant to be paid offthis sentence if the Company shall have used the efforts required hereby to comply with such obligations, discharged whether or terminated on the Closing Datenot any applicable deliverables are actually obtained or provided); provided, however, provided that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth contained in this Section 6.17) or, in 7.9 shall require such cooperation to the good faith judgment of the Company or any of its Subsidiaries, extent that it would interfere unreasonably with the business or operations of the Company or its Subsidiaries. The Company shall cause its officers, in their capacities as officers, to deliver such customary management representation letters as any audit firm may reasonably request in connection with any comfort letters or similar documents required in connection with the Debt Financing. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing, provided that such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or the reputation or goodwill of the Company and its marks. Neither the Company nor any of its Subsidiaries shall be required, under the provisions of this Section 7.9 or otherwise in connection with the Debt Financing (x) to pay any commitment or other similar fee prior to the Effective Time that is not advanced or simultaneously reimbursed by Parent, or (y) to incur any out-of-pocket expense unless such expense is advanced or simultaneously reimbursed by Parent. Parent shall indemnify and hold harmless the Company, jeopardize its Subsidiaries and their respective Representatives from and against any and all Damages suffered or incurred by them and any claims made against them in connection with (1) any action taken by them at the health request of Parent or Merger Sub pursuant to this Section 7.9 or in connection with the arrangement of the Debt Financing or (2) any information utilized in connection therewith (other than information provided by the Company or its Subsidiaries), and safety this indemnification shall survive termination of any employee of this Agreement. Nothing contained in this Section 7.9 or otherwise shall require the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied an issuer or otherwise cause any breach of this Agreement by Parent or Merger Subother obligor with respect to the Debt Financing prior to the Closing. All material, cause any director, officer or employee of non-public information regarding the Company or and its Subsidiaries provided to incur any liability Parent, Merger Sub or cause any breach of any Applicable Law, (iitheir Representatives pursuant to this Section 7.9(a) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed kept confidential by Parent them in accordance with this Section 6.17) or incur any other liability the Confidentiality Agreements except for disclosure to potential investors as required in connection with the Debt Financing or provide or agree subject to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)confidentiality protections.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Penn National Gaming Inc)
Financing. (a) Prior to the Closing, the Company shall use reasonable best efforts, Purchaser has arranged and shall cause its Subsidiaries to use reasonable best efforts, obtained fully committed and underwritten financing and shall use commercially reasonable best efforts to cause their obtain the proceeds of the Acquisition Financing on the terms and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise conditions described in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Acquisition Financing Commitment Letter and/or arrangingLetters, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: including to (i) assisting maintain in effect the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Acquisition Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; the Acquisition Financing Commitments Letters, (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information enter into definitive financing agreements with respect to the Company required by regulatory authorities under applicable “know your customer” Acquisition Financing on the terms and anti-money laundering rules conditions specified in the Acquisition Financing Commitment Letters, so that such agreements are in effect as promptly as practicable but in any event no later than the Closing and regulations, including without limitation (iii) consummate the PATRIOT Act, and in each case, requested by the Debt Acquisition Financing Sources in writing at least ten Business Days or prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy Closing. Without limiting the conditions precedent to the Debt Financing that are within the control generality of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, Purchaser shall give Seller prompt notice (ivA) the Company shall not be required of any breach or default by any party to execute prior any Acquisition Financing Commitment Letters or definitive document related to the Closing Acquisition Financing of which Purchaser becomes aware; (B) of the receipt of any notice or other communication from any financing source with respect to any: (x) breach, default, termination or repudiation by any party to any Acquisition Financing Commitment Letters or any definitive financing documents document related to the Acquisition Financing of any provisions of the Acquisition Financing Commitment Letters or any definitive document related to the Acquisition Financing or (y) formal dispute between or among any parties to, or disagreement between or among any parties other than customary representation and authorization letters), including any other certificates or documents disagreements in connection with ordinary course negotiations regarding the Debt terms and conditions of, any Acquisition Financing Commitment Letters or any definitive documents related to the Acquisition Financing, except ; and (C) if for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably reason Purchaser believes in good faith believe that it will not be able to be trueobtain all or any portion of the Acquisition Financing that Purchaser requests on the terms, in the manner or from the sources contemplated by the Acquisition Financing Commitment Letters or the definitive documents relating to the Acquisition Financing. In additionAs soon as reasonably practicable following Seller’s written request, Purchaser shall provide any information reasonably requested by Seller relating to any circumstances referred to in clause (A), (B) or (C) of the immediately preceding sentence. For the avoidance of doubt, the Company shall furnish Parent reasonably promptly (and, in any event, prior Closing is not conditioned upon Purchaser’s ability to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)obtain financing.
Appears in 1 contract
Samples: Purchase Agreement (Nn Inc)
Financing. (a) Prior to the Closing, the Company shall use reasonable best efforts, and shall cause its Subsidiaries to use reasonable best effortsshall, and shall use their commercially reasonable best efforts to cause their and their Subsidiaries’ the respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement Representatives of the CompanyCompany and its Subsidiaries to, at Parent’s sole cost and expense, to provide to Parent all cooperation cooperate as reasonably requested by Parent, JAB in connection with arrangingany equity, syndicating, consummating and obtaining the Debt Financing under and debt or other financing sought by JAB or its Affiliates in accordance connection with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing transactions contemplated by this Agreement (collectively, the “Debt Financing”), including: , without limitation (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreednotice, participation of representatives of by the Company’s senior management of the Company (which participation may be by videoconference) officers and other Representatives in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies, (ii) assisting with the preparation of customary materials for syndication documents, including rating agency meetingspresentations, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary bank confidential information memoranda, business projections and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions similar documents required to be delivered in connection with the Debt Financing; , (iii) using commercially reasonable efforts to cause its independent accountants to provide assistance and cooperation to JAB, including participating in drafting sessions and accounting due diligence sessions and providing consent to JAB to use their audit reports relating to the Company, (iv) permitting officers using commercially reasonable efforts to obtain consents, approvals, authorizations, customary payoff letters, and instruments of termination and discharge reasonably requested by JAB, (v) preparing and furnishing all financial and other pertinent information regarding the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute reasonably requested by JAB, including all financial statements, pro forma financial statements and deliver any documentation other financial data required in connection with the Debt Financing Financing, (vi) providing reasonable access (subject to subclause execution of non-disclosure and confidentiality agreements reasonably acceptable to the Company) to prospective lenders involved in the Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for purposes of establishing collateral arrangements and cooperating with prospective lenders to establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing; provided that no such accounts, agreements or arrangements shall be effective prior to the Effective Time, (ivvii) of the proviso below) executing and delivering definitive financing documents, including any customary closing officer’s certificates credit agreements, intercreditor agreements, pledge and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiariessecurity documents, and taking corporate action certificates, legal opinions, or other documents, to authorize the borrowing extent reasonably requested by JAB and guarantees otherwise reasonably facilitating the pledging of the Debt Financingcollateral, provided that any of the foregoing no such documents or agreements shall not require the adoption of any corporate resolutions or actions be effective prior to the Closing Date; Effective Time, (vvii) assisting JAB in obtaining corporate and facilities ratings for the Financing, and (viii) furnishing a certificate of a financial officer of JAB and any lenders involved with the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) Financing, with all documentation and other information required by any Governmental Entity with respect to the Company required by regulatory authorities Financing under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding . Notwithstanding the foregoing, : (i) nothing herein such requested cooperation shall require not unreasonably interfere with the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment ongoing operations of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health ; and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor any of its Affiliates, directors, officers, employees, agents and Representatives Subsidiaries shall be required to pay any commitment or other similar fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing. JAB shall (A) promptly upon request by the Company, (iv) reimburse the Company shall not be required to execute prior to for all reasonable and documented out-of-pocket fees and expenses of the Closing any definitive financing documents (other than customary representation Company and authorization letters), including any other certificates or documents its Subsidiaries and all reasonable and documented fees and expenses of their counsel and accountants incurred in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing)such requested cooperation, and (viB) no Representative of indemnify the Company or any of Company, its Subsidiaries shall be required and its Related Persons against any claim, loss, damage, injury, liability, judgment, award, penalty, fine, Tax, cost (including cost of investigation), expense (including reasonable fees and expenses of counsel) or settlement payment incurred as a result of such cooperation (including any claim by or with respect to make any certifications that it does not reasonably in good faith believe to be true. In additionsuch lenders, the Company shall furnish Parent reasonably promptly (andprospective lenders, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 agents and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreementarrangers and ratings agencies).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Peets Coffee & Tea Inc)
Financing. During the Interim Period, New Pubco or Purchaser may execute subscription agreements or enter into other arrangements (aincluding, without limitation, non-redemption agreements, backstop agreements for the trust account, etc.) Prior with potential sources of debt, equity or other financing in order to satisfy the Closingcondition set forth in Section 8.2(d). If Purchaser desires to seek such financing (the “Potential Financing”) and the Company consents in writing to such financing (such consent not to be unreasonably conditioned, withheld or delayed), the Company shall use reasonable best effortsand each Company Stockholder agrees, and shall cause its Subsidiaries the appropriate officers and employees thereof, to use commercially reasonable best efforts, and shall use reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used cooperate in connection with the marketing arrangement of such Potential Financing (including the satisfaction of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (iiconditions precedent set forth therein) upon reasonable prior notice and at times to as may be reasonably agreedrequested by Purchaser, participation of representatives of senior management of the Company including by (which participation may be by videoconferencea) participating in a reasonable number of meetings, presentations, due diligence sessions, drafting sessions and sessions with rating agencies at mutually agreeable times and locations and upon reasonable advance notice, (b) assisting with the preparation of customary materials for actual and potential investors, rating agency meetingspresentations, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary offering documents, private placement memoranda, bank information memoranda, prospectuses and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions similar documents required to be delivered in connection with such financing (which shall not include pro forma financial information); provided, that, the Debt Financing; Company shall have the right to review and approve (ivwhich approval shall not be unreasonably conditioned, withheld or delayed) permitting officers any such materials prior to their distribution, (c) executing and delivering any pledge and security documents, other definitive financing documents, or other certificates, or documents as may be reasonably requested by Purchaser or otherwise reasonably facilitating the pledging of collateral, provided, that, such documents will not take effect until the Closing, (d) taking or appointing a representative of Purchaser to take all corporate actions, subject to the occurrence of the Company or any of its Subsidiaries who will be officers Closing, reasonably requested by Purchaser to permit the consummation of the Potential Financing immediately prior to or following the Closing Date, (e) providing the Company Financials and such other financial information regarding the Company that is readily available or any of its Subsidiaries after Closing to execute within the Company’s possession and deliver any documentation as is reasonably requested in connection with the Debt Financing arrangement of such financing, (subject to subclause (ivf) of the proviso below) including any executing and delivering reasonable and customary closing officer’s certificates and secretary’s certificates prepared other documentation required by Parent (including certification of organizational authorizationany such equity investor and the subscription agreement, organizational documents and good standing provided, that no such certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing letters or other documentation shall not require the adoption of any corporate resolutions or actions be effective prior to the Closing Date; consummation of the transactions contemplated by the subscription agreement, (vg) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) Purchaser, with all documentation and other information with respect to the Company required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT ActPatriot Act and (h) otherwise reasonably cooperating in Purchaser’s efforts to obtain such Potential Financing. If Purchaser desires to seek Potential Financing, Atlas FinTech further agrees, and shall cause the appropriate officers and employees thereof, to cause the applicable Sponsors to transfer up to 1,279,426.82 Purchaser Common Stock and up to 1,657,578.65 Purchaser Warrants that are held, directly or indirectly, by Atlas Fintech to potential sources of debt, equity or other financing in each caseconnection with the Potential Financing, requested which transfer shall be effectuated in connection with, and as of immediately prior to, the Closing. Atlas Fintech agrees that any Purchaser Common Stock or Purchaser Warrant that remains held, directly or indirectly, by the Debt Financing Sources in writing at least ten Business Days Atlas Fintech as of immediately prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control shall automatically be forfeited for no consideration and all such shares of the Company Purchaser Common Stock or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event Purchaser Warrants shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge deemed to be delivered at Closing to allow for the payoff, discharge cancelled and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)longer outstanding.
Appears in 1 contract
Samples: Business Combination Agreement (Quantum FinTech Acquisition Corp)
Financing. (a) Prior to the Closing, Management Holdings, Sellers and the Company shall use reasonable best effortsAcquired Companies shall, and shall cause its Subsidiaries to use reasonable best effortsthe other Group Companies to, and shall use reasonable best efforts to cause their provide, at Buyer’s sole expense, the following cooperation with Buyer’s efforts to obtain debt financing in connection with the consummation of the Transactions (collectively the “Debt Financing”) (provided, that such requested cooperation does not unreasonably interfere with the ongoing operations of any of the Acquired Companies): (i) participation in a reasonable number of meetings, drafting sessions, rating agency presentations and their Subsidiaries’ respective Representativesdue diligence sessions; (ii) furnishing Buyer and its potential debt financing sources for the Debt Financing (the “Lenders”) with such financial information relating to the Group Companies as may be reasonably requested by Buyer or the Lenders; (iii) as may be reasonably requested by Buyer, and no earlier than immediately prior to the Effective Time, use commercially reasonable efforts to transfer or otherwise restructure its ownership of the Group Companies, properties or other assets, including formation of new entities, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, pursuant to provide documentation reasonably acceptable to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing Seller Representative; provided that no action shall be required under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; this clause (iii) providing customary information and assistance to the extent such action could reasonably necessary be expected to assist Parent and its counsel with obtaining cause any breach of, or require any board or investor vote under, the customary legal opinions required to be delivered in connection with the Debt Financing; governing documents of any Acquired Company, (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all provide documentation and other information with respect relating to the Company Group Companies requested by Buyer in writing and required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including without limitation regulations in connection with the PATRIOT ActDebt Financing, and (v) assisting Buyer and the Lenders in each casethe preparation of (A) a customary offering document, requested by private placement memorandum or bank information memorandum for any of the Debt Financing Sources in writing at least ten Business Days prior to the Closing Dateextent specifically required thereby and (B) materials for rating agency presentations; provided, that (vii1) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control none of the Company Sellers, Management Holdings or its Subsidiaries; Acquired Companies shall be required to pay any fees (viiiother than reasonable out of pocket expenses promptly reimbursed by Buyer hereunder on demand) providing such or incur any other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request liability in connection with the Debt Financing until after the occurrence of the Closing, (provided that in no event 2) none of the Sellers, Management Holdings or Acquired Companies shall the Company, its Subsidiaries, and their respective Representatives be required to provide execute or deliver any pro forma financial information documents or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of take any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge action relating to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on that is not contingent upon the Closing Date; provided, however, that notwithstanding the foregoingClosing, (i3) nothing herein no Representative of the Sellers, Management Holdings or Acquired Companies shall require the Company, its Subsidiaries or any of their respective Representatives be required to take any action that would could reasonably be effective prior expected to result in or cause any liability (personal or otherwise) on the part of any Representative, (4) no action shall be required to the Closing (other than as expressly set forth extent such action could reasonably be expected to cause any representation or warranty or covenant contained in this Section 6.17Agreement to be breached, unless expressly waived by Buyer and Seller Representative, and (5) or, in no action shall be required to the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, extent such action could reasonably be expected to cause any condition to the Closing set forth in Article VII to fail to be satisfied or otherwise cause any breach of this Agreement Agreement, unless expressly waived by Parent or Merger Sub, cause any director, officer or employee of the Company Buyer and Seller Representative. Any information provided to Buyer or its Subsidiaries Representatives pursuant to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies6.8(a) shall be required to take any corporate actions prior subject to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Confidentiality Agreement).
Appears in 1 contract
Samples: Transaction Agreement (Blackstone Real Estate Income Trust, Inc.)
Financing. (a) Prior to the Offer Closing, subject to the limitations set forth below, the Company shall use reasonable best effortsshall, and shall cause its Subsidiaries to use reasonable best effortsto, and shall use reasonable best efforts to cause their its and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, Representatives to provide to Parent all and Merger Sub such cooperation as is reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used Parent or Merger Sub in connection with the Debt Financing (provided that such requested cooperation is consistent with applicable Law and does not materially interfere with the operations of the Company and its Subsidiaries), including (i) participation in meetings, presentations, due diligence sessions and sessions with rating agencies as reasonably requested by Parent or Merger Sub and otherwise reasonably cooperating with the marketing efforts of Parent or Merger Sub for the Debt Financing, (ii) providing all reasonably requested assistance with the preparation of customary materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the Debt Financing; provided that any such memoranda or prospectuses may, at the election of Parent or Merger Sub, contain disclosure and financial statements with respect to the Company or the Surviving Corporation reflecting the Surviving Corporation and/or its Subsidiaries as the obligor, (iii) furnishing Parent and Merger Sub with financial and other information regarding the Company and its Subsidiaries, as may be reasonably requested by Parent or Merger Sub to consummate the Debt Financing and ratings agency presentations customary to include in any marketing materials for the type of debt finacning contemplated by the Debt Commitment Letter; provided that the Company shall not be required to provide, and delivering customary representation Parent and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times Merger Sub shall be responsible for, any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other post-Closing pro forma adjustments desired to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary incorporated into any information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered used in connection with the Debt Financing; (iv) permitting officers using reasonable best efforts to obtain customary accountants’ comfort letters (including providing any necessary management representation letters), appraisals, surveys, title insurance, landlord waivers and estoppels, non-disturbance agreements and other documentation and items relating to the Debt Financing as reasonably requested by Parent or Merger Sub and, if requested by Parent or Merger Sub, to cooperate with and assist Parent and Merger Sub in obtaining such documentation and items; (v) reasonable participation by appropriate senior management of the Company or any of its Subsidiaries who will be officers in the negotiation and preparation of the Company or any of its Subsidiaries after Closing documentation relating to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (such documents executed and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required delivered by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does subject (or not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior delivered prior) to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C occurrence of the Debt Financing Commitment Letter Offer Closing; (or vi) using reasonable best efforts to take such actions that are reasonably necessary to permit the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained prospective lenders involved in the Debt Financing Commitment Letter as to perform customary due diligence of the Company and its Subsidiaries; and (vii) provide customary payoff letters and Lien releases (subject, in effect on the date each case, to receipt of this Agreementfunds from Parent sufficient to make such repayments).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Volt Information Sciences, Inc.)
Financing. (a) Prior to From the Closingdate hereof until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article VII, the Company shall use its commercially reasonable best efforts, and shall cause its Subsidiaries efforts to use reasonable best effortsprovide to Parent, and shall use its commercially reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, its Representatives (in each case, case with appropriate seniority and expertise expertise, including in the good faith judgement of the Company, at Parent’s sole cost and expense, its or their accounting firms) to provide or cause to Parent all be provided to Parent, on a timely basis, such cooperation that is customary and reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used Parent in connection with the marketing arrangement and consummation of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times any debt financing to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be obtained by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and or its counsel with obtaining the customary legal opinions required to be delivered Affiliates in connection with the transactions contemplated hereby (the "Debt Financing; "), including using commercially reasonable efforts to (ivi) permitting officers of deliver to Parent and the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute Lender Parties such financial and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of other pertinent information regarding the Company and its Subsidiaries, and taking corporate action to authorize in each case that is in the borrowing and guarantees possession of the Debt FinancingCompany, as is customarily provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters lenders in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (syndicated senior secured credit facility financings and in any event at least five Business Days prior to the Closing Date) with all documentation and other which is reasonably requested by Parent, including information with respect related to the Company and its Subsidiaries required by regulatory authorities including under applicable “"know your customer” " and anti-money laundering rules and regulations, including without limitation the PATRIOT Patriot Act, and in each case, requested information reasonably necessary to complete disclosure schedules required by the Debt Financing Sources in writing at least ten Business Days prior to the Closing DateLender Parties; (viiii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent execute and deliver customary definitive financing documentation, including pledge and security documents, guarantees, certificates (including a solvency certificate), instruments and other matters ancillary to the Debt Financing that are within Financing, and otherwise facilitating the control pledging of the Company or its Subsidiaries; collateral (viii) including providing such other reasonably available financial reasonable and other customary information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request required in connection with the Debt Financing pledging and identification of bank accounts, insurance, real property (provided that in no event shall the Company, its Subsidiariesboth owned and leased) and intellectual property, and their respective Representatives be required to provide any pro forma financial information delivering stock or statementsother certificates for certificated securities (with transfer powers executed in blank)), (ix) assisting in and facilitating the preparation delivery of customary definitive financing documentation and the completion of any scheduleslegal opinions, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to as may be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Datereasonably requested by Parent; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment take all corporate or other fee similar administrative or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate organizational actions prior to the Closing reasonably necessary to permit the consummation of the Debt Financing (except for Financing, such as by having the Company Board of Directors and officers provide any corporate actions that are conditioned upon the Closing)resolutions, and (vi) no Representative consents or approvals on behalf of the Company or any of its Subsidiaries shall as may be required to make any certifications that it does not by the Lender Parties reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C necessary for consummation of the Debt Financing Commitment Letter Financing; and (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)iv) obtain customary payoff letters and collateral releases.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Top Image Systems LTD)
Financing. (a) Prior The Purchaser shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain and consummate the Debt Financing on the terms and conditions described in the Debt Commitment Letters or Fee Letters (including the flex provisions, if applicable), subject to any amendments or modifications thereto permitted by Section 8.09(b), including using its reasonable best efforts to: (i) maintain in effect the Debt Commitment Letters and Fee Letters and the financing commitments thereunder, (ii) negotiate, execute and deliver definitive agreements with respect to the Debt Financing on terms and conditions (including the flex provisions, if applicable) contained therein or on other terms not materially less favorable to the Purchaser and the Merger Sub, in the aggregate, than the terms and conditions (including any “market flex” provisions applicable thereto) contained in the Debt Commitment Letters or Fee Letters, (iii) satisfy on a timely basis all conditions that are applicable to the Purchaser contained in the Debt Commitment Letter or Fee Letters, including the payment of any commitment, engagement or placement fees required as a condition to the Debt Financing and due and payable by the Purchaser, 63 (iv) enforce its rights under the Debt Commitment Letters and Fee Letter, (v) consummate the Debt Financing at or prior to the Closing, including drawing on any interim or bridge financing under the Debt Commitment Letters or Fee Letters. The Purchaser shall provide such information as shall be necessary to keep the Company informed on a reasonable basis and in reasonable detail of the status of its efforts to arrange the Debt Financing. In the event Purchaser becomes aware that all or any portion of the Debt Financing has become unavailable, the Purchaser shall use reasonable best efforts, and shall cause its Subsidiaries to use reasonable best efforts, promptly notify the Company and shall use its reasonable best efforts to cause their arrange as promptly as practicable any such portion from alternative sources on terms and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority conditions no less favorable to the Purchaser and expertise to the Company taken as a whole than the terms and conditions set forth in the good faith judgement Debt Commitment Letters and that would not have any of the Companyeffects specified in Section 8.09(b) (any such alternative financing, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any “Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt . If an Alternative Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions is required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection 8.09(a), the Purchaser shall obtain, and when obtained, provide the Company with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing a copy of, a new financing commitment that would be effective prior to the Closingprovides for such Alternative Financing, and on such event, (iv1) the term “Debt Financing” as used in this Agreement will be deemed to include any such Alternative Financing and (2) the term “Debt Commitment Letters” will be deemed to include any commitment letters with respect to any such Alternative Financing. The Purchaser shall give the Company shall not be required prompt notice of any material change (adverse or otherwise) with respect to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except including (A) the expiration or termination of all or any portion of the financing commitments under the Debt Commitment Letters or any definitive documentation relating to the foregoing; (B) all or any portion of the Debt Financing (including pursuant to any Alternative Financing or definitive documents relating to any of the foregoing) becoming unavailable for any execution reason; or (C) any breach or repudiation by any party to the Debt Commitment Letters (including any definitive documents relating to any of documents that are conditioned upon the Closingforegoing) of which the Purchaser becomes aware if such breach would reasonably be expected to result in a material delay of the Closing Date. (b) Notwithstanding anything to the contrary in this Agreement, (v) neither the Company nor Purchaser shall not, without the prior written consent of the Company, agree to or permit any amendment, replacement, supplement or other modification of, or waive any of its Subsidiaries rights or remedies under, the Debt Commitment Letters or Fee Letters; provided that Purchaser may (nor their respective governing bodiesi) shall be required amend, replace, supplement, modify or waive any provision of the Debt Commitment Letters or related Fee Letters if such amendment, replacement, supplement, modification or waiver does not (w) add any new (or adversely modify, expand or amend in any material respect any existing) condition to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon as compared to the Closing), conditions in the Debt Commitment Letters and (vi) no Representative Fee Letters as of the Company or any of its Subsidiaries shall be required to date hereof, (x) make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C funding of the Debt Financing or conditions therein materially less likely to be satisfied or materially delay, materially impede or prevent the Closing, (y) adversely affect in any material respect the ability of the Purchaser to enforce its rights against the other parties to the Debt Commitment Letter Letters or in any definitive agreements executed in connection herewith or (z) reduce (or would reasonably be expected to have the analogous provision in any commitment letter for any Alternative effect of 64 reducing) the aggregate amount of the Debt Financing contemplated thereunder (provided unless after giving effect to such reduction, the representation and warranty in Section 6.08(d) shall be true and correct) and (ii) amend the Debt Commitment Letters to add lenders, lead arrangers, book runners, syndication agents or similar entities who had not executed the Debt Commitment Letters as of the date of this Agreement, so long as any such addition would not reasonably be expected to prevent, materially hinder or materially delay the consummation of the Debt Financing or the transactions contemplated by this Agreement or the availability of the Debt Financing under the Debt Commitment Letters. The Purchaser shall promptly deliver to the Company copies (redacted only as to fee amounts, dates and certain other economic terms, including in respect of “market flex” and “securities demand” provisions, in the case of the Fee Letters) of any such amendment, replacement, supplement or other modification or waiver of the Debt Commitment Letters or Fee Letters. The Purchaser and Merger Sub acknowledge and agree that the obtaining of Debt Financing is not a condition to Closing and reaffirm their obligation to consummate the Merger irrespective and independently of the availability of the Debt Financing, subject to fulfillment or waiver of the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement).Section 3.01. ARTICLE
Appears in 1 contract
Samples: Agreement and Plan of Merger
Financing. (a) Prior to the ClosingEffective Time, the Company shall use reasonable best effortsprovide, and shall cause its Subsidiaries to use reasonable best effortsto, and shall use its reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, in each caseincluding legal and accounting, with appropriate seniority and expertise in the good faith judgement of the Companyto, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used Parent in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; the other transactions contemplated by this Agreement, including (iii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies, (ii) assisting with the preparation of materials for rating agency meetingspresentations, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary offering documents, private placement memoranda, bank information memoranda, prospectuses and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions similar documents required to be delivered in connection with the Debt Financing; , (iviii) permitting officers executing and delivering any pledge and security documents, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Parent (including a certificate of the chief financial officer of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company Subsidiary with respect to solvency matters and consents of accountants for use of their reports in a customary any materials relating to the Debt Financing) and otherwise reasonably facilitating the pledging of collateral, in each case effective on or after the Effective Time, (iv) furnishing Parent and its Financing sources with financial and other pertinent information regarding the Company as may be reasonably requested by Parent, including all financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act and of type and form required customarily included in private placements under Rule 144A of the Securities Act in respect of foreign private issuers (as such term is defined under the Exchange Act), to consummate the Debt Financing as offering of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested debt securities contemplated by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; Commitments, (viiv) using reasonable best efforts to cooperate with Parent obtain accountants’ comfort letters, legal opinions, surveys and title insurance as reasonably requested by Parent, (vi) using its commercially reasonable efforts to satisfy provide monthly financial statements (excluding footnotes) within 25 days of the conditions precedent end of each month prior to the Debt Closing Date, (vii) taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Financing that are within to evaluate the control Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements Table of Contents and (B) effective on or after the Company or its Subsidiaries; (viii) providing such other reasonably available financial Effective Time, establish bank and other information with respect to the Company accounts and its business as Parent or its Debt Financing Sources may reasonably request blocked account agreements and lock box arrangements in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiariesforegoing, and their respective Representatives be required to provide any pro forma financial information or statements), (ixviii) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of taking all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing reasonably necessary to permit the consummation of the Debt Financing and to permit the proceeds thereof to be made available to the Company (except for it being understood that (A) to the greatest extent practicable, the actions contemplated by this Section 7.9(a)(viii) shall not be required to be taken until immediately prior to the Closing and that prior to the taking of such actions, any corporate actions that are conditioned upon current member of the Board of Directors may resign and (B) if such member of the Board of Directors resigns, the failure of any such director to take any such action shall not constitute a failure to satisfy a condition to Closing). Parent shall, promptly upon request by the Company, reimburse, or cause its Affiliates to reimburse, the Company for all reasonable and (vi) no Representative documented out-of-pocket costs incurred by the Company or its Subsidiaries in connection with such cooperation. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing, provided that such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or the reputation or goodwill of the Company or any of and its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)marks.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Kerzner International LTD)
Financing. (a) Prior to the Closing, the Company shall use reasonable best efforts, and shall cause its Subsidiaries to use reasonable best effortseach Seller shall, and shall use commercially reasonable best efforts to cause the Subject Entities to, provide assistance (and to cause their respective personnel and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, advisors to provide to Parent all cooperation assistance) with the Debt Financing as is reasonably requested by Parent, Acquirors in connection with arrangingthe arrangement of, syndicatingand the satisfaction on a timely basis of all conditions precedent to, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arrangingFinancing. Such assistance shall include, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), includingbut not be limited to: (i) assisting in reasonable participation in, and assistance with, the preparation of the Marketing Material; (ii) reasonable participation by senior management of the Subject Entities in, and assistance with, the preparation of a confidential reasonable number of rating agency presentations and meetings with rating agencies; (iii) delivering the Financing Information to Acquirors as promptly as reasonably practicable once available; (iv) delivering customary authorization letters to the Lenders authorizing the distribution of Marketing Material to prospective investors (including assistance from the Manager, (x) with Acquirors’ determination of the presence or absence of material non-public information memorandum and other (y) with Acquirors’ making customary marketing materials to be used 10b-5 representations); and (v) assisting Acquirors in connection with the marketing preparation by Acquirors of the Debt Financing any loan, pledge and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions security agreements required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize for the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate loans and/or granting of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly security interest (and perfection thereof) in any event at least five Business Days prior to the Closing Date) with all documentation and other information Subject Interests, including requesting that the transfer agent with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation Subject Entity make any applicable notations in the PATRIOT Act, and equity register of the applicable Subject Entity reflecting the pledge of the Subject Interests in each case, requested by favor of the Debt Financing Sources in writing at least ten Business Days prior to or an agent or trustee on their behalf if required; provided that (A) no Liability shall be imposed on Sellers, their Affiliates or any Subject Entity or their respective officers or employees involved and (B) information provided by Sellers or the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request Subject Entities in connection with the Debt Financing (shall only be provided to sources or potential sources of financing that in no event shall have executed a confidentiality agreement on terms reasonably acceptable to Sellers. Sellers hereby consent to the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date use of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents Subject Entities’ logos in connection with the Debt Financing, except for any execution of documents provided that such logos are conditioned upon used solely in a manner that is not intended to or reasonably likely to harm or disparage Sellers, the ClosingSubject Entities, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to Affiliates or their respective business. Acquirors acknowledge and agree that the Closing to permit the consummation obtaining of the Debt Financing (except for any corporate actions that are conditioned upon shall not constitute a condition to Acquirors’ obligation to close the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of transactions contemplated by this Agreement).
Appears in 1 contract
Financing. (a) Prior to the Closing, the Company shall use reasonable best effortsprovide to Parent and Merger Sub, and shall cause its Subsidiaries to use reasonable best effortssubsidiaries to, and shall use its reasonable best efforts to cause their the respective officers, employees, Representatives and their Subsidiaries’ respective Representativesadvisors, in each caseincluding legal and accounting, with appropriate seniority and expertise in the good faith judgement of the CompanyCompany and its subsidiaries to, at Parent’s sole cost and expense, to provide to Parent and Merger Sub all cooperation requested by Parent that is necessary, proper or advisable in connection with the Financing and the other transactions contemplated by this Agreement, including (i) participation in meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the Financing, (iii) executing and delivering any pledge and security documents, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Parent (including a certificate of the chief financial officer of the Company or any subsidiary with respect to solvency matters and consents of accountants for use of their reports in any materials relating to the Debt Financing), (iv) furnishing Parent and Merger Sub and their Financing sources with financial and other pertinent information regarding the Company as may be reasonably requested by Parent, in connection with arranging, syndicating, consummating including all financial statements and obtaining the Debt Financing under and in accordance with the terms financial data of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating type required by Regulation S-X and obtaining any Alternative Debt Financing (collectively, Regulation S-K under the “Debt Financing”), including: (i) assisting Securities Act and of type and form customarily included in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing private placements under Rule 144A of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreedSecurities Act, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as offerings of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested debt securities contemplated by the Debt Financing Sources Commitments at the time during the Company's fiscal year such offerings will be made (the "Required Financial Information"), (v) satisfying the conditions set forth in writing at least ten Business Days prior clause (e) of the first sentence of Section 6 of the Principal Commitment Letter, numbered paragraphs 5 and 8 of Exhibit E of the Principal Commitment Letter and clause (e) of the first sentence of Section 7 of the Forward Underwriting Commitment Letter (to the Closing Date; extent the satisfaction of such conditions requires actions by or cooperation of the Company), (viivi) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiariesobtain accountants' comfort letters, legal opinions, surveys and title insurance as reasonably requested by Parent; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior such cooperation to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, extent it would interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Lawsubsidiaries, (iivii) using its commercially reasonable efforts to provide monthly financial statements (excluding footnotes) within 25 days of the Company shall not be required end of each month prior the Closing Date, (viii) taking all actions necessary to disclose any information to Parent or any of its Affiliates or any (A) permit the prospective lender or any their respective representatives if doing so would result lenders involved in the waiver Financing to evaluate the Company's current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, establishing collateral arrangements and (iiiB) neither the Company nor its Affiliates, directors, officers, employees, agents establish bank and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees accounts and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability blocked account agreements and lock box arrangements in connection with the foregoing, (ix) obtaining any necessary rating agencies' confirmations or approvals for the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior relating to the ClosingCompany's existing credit card receivables financing facility, and (ivx) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any taking all corporate actions prior to the Closing necessary to permit the consummation of the Debt Financing (except and to permit the proceeds thereof to be made available to the Company, including, without limitation, by means of a dividend or distribution from Neiman Marcus Funding Corporation, as of the Closing Date. Parent shall, promptly upon request by the Company, reimburse the Company for any corporate actions that are conditioned upon the Closing), all reasonable and (vi) no Representative of documented out-of-pocket costs incurred by the Company or any its subsidiaries in connection with such cooperation. The Company hereby consents to the use of its Subsidiaries and its subsidiaries' logos in connection with the Debt Financing. (b) Parent shall be required use its reasonable best efforts to make any certifications that it does not reasonably in good faith believe take, or cause to be true. In additiontaken, the Company shall furnish Parent reasonably promptly (andall actions and to do, in any eventor cause to be done, prior all things necessary, proper or advisable to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of arrange the Debt Financing Commitment Letter (or on the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the terms and conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained described in the Debt Financing Commitment Letter Commitments (provided that Parent and Merger Sub may replace or amend the Debt Financing Commitments to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitments as of the date hereof, or otherwise so long as the terms are not materially less beneficial to Merger Sub, including with respect to conditionality, than those in the Debt Financing Commitments as in effect on the date hereof as determined in the reasonable judgment of Parent), including using reasonable best efforts to (i) maintain in effect the Financing commitments, (ii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub to obtaining the Financing set forth therein (including by consummating the Equity Financing pursuant to the terms of the Equity Financing Commitments), (iii) enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Debt Financing Commitments (including the related flex provisions) or on other terms not materially less beneficial to Merger Sub, including with respect to conditionality, as determined in the reasonable judgment of Parent and (iv) consummate the Financing at or prior to Closing. In the event any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitments, Parent shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources in an amount sufficient to consummate the transactions contemplated by this Agreement on terms not materially less beneficial to Merger Sub (as determined in the reasonable judgment of Parent) as promptly as practicable following the occurrence of such event but no later than the last day of the Marketing Period. For the avoidance of doubt, in the event that (x) all or any portion of the Debt Financing structured as high yield financing has not been consummated, (y) all closing conditions contained in Article VII shall have been satisfied or waived (other than those contained in Sections 7.2(c) and 7.3(c)) and (z) the bridge facilities contemplated by the Debt Financing Commitments (or alternative bridge financing obtained in accordance with this Section 6.10(b)) are available on the terms and conditions described in the Debt Financing Commitments (or replacements thereof as contemplated by this Section 6.10(b)), then Merger Sub shall use the proceeds of such bridge financing to replace such high yield financing no later than the last day of the Marketing Period. For purposes of this Agreement, "Marketing Period" shall mean the first period of 40 consecutive calendar days after the Initiation Date (A) throughout which (1) Merger Sub shall have the Required Financial Information that the Company is required to provide to Merger Sub pursuant to Section 6.10(a) and (2) nothing has occurred and no condition exists that would cause any of the conditions set forth in Section 7.2(a) and 7.2(b) to fail to be satisfied assuming the Closing were to be scheduled for any time during such 40-consecutive-calendar-day period, and (B) at the end of which the conditions set forth in Section 7.1 shall be satisfied. For purposes of this Agreement, "Initiation Date" shall mean the twentieth day after the date the definitive Proxy Statement is first mailed to the Company's stockholders; provided, however, that such twenty-day period shall not commence unless and until the Company has provided the Required Financial Information to Merger Sub pursuant to a good faith request therefor by Merger Sub prior to such mailing, and provided, further, that if the Marketing Period would end on or after August 15, 2005, the Initiation Date shall be the later of (A) September 1, 2005 and (B) the date the Company's Annual Report on Form 10-K for the fiscal year ended July 31, 2005 is filed with the SEC. Parent shall give the Company prompt notice of any material breach by any party of the Debt Financing Commitments of which Parent or Merger Sub becomes aware or any termination of the Debt Financing Commitments. Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Debt Financing and provide to the Company copies of all documents related to the Debt Financing (other than any ancillary documents subject to confidentiality agreements).. In addition, Merger Sub agrees to exercise its rights under the last sentence of numbered paragraph 6 of Exhibit E to the Principal Commitment Letter to the extent necessary to arrange the Debt Financing on the terms and conditions described in the Debt Financing Commitments in order to borrow the full amount available pursuant to the proviso to clause (a) of such numbered paragraph 6. SECTION 6.11
Appears in 1 contract
Samples: Agreement and Plan of Merger (Neiman Marcus Group Inc)
Financing. (a) Prior Subject to applicable Law, prior to the Closing, the Company shall use reasonable best effortsshall, and shall cause its the Company Subsidiaries to use reasonable best effortsto, and shall use commercially reasonable best efforts to to, cause their its and their the Company Subsidiaries’ respective RepresentativesRepresentatives to, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested in writing (which may be via e-mail) by Parent, Parent in connection with arrangingParent arranging financing with respect to the Company, syndicating, consummating the Company Subsidiaries or the Company Real Properties effective as of or after (and obtaining conditioned on the Debt Financing under and in accordance with occurrence of) the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing Partnership Merger Effective Time (collectively, the “Debt Financing”), including: including using commercially reasonable efforts to (i) assisting in furnish to Parent and its financing sources as promptly as reasonably practicable following delivery of request therefor to the preparation of a confidential information memorandum Company by Parent, such financial, statistical and other customary marketing materials pertinent information and projections relating to the Company and the Company Subsidiaries as may be used reasonably requested in writing (which may be via e-mail) (which notice shall state with reasonable specificity the information requested) by Parent and customarily required in connection with financings of a type similar to the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; Financing, (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management make appropriate officers of the Company (which participation may be by videoconference) in and the Company Subsidiaries available at reasonable times and with reasonable advance notice for a reasonable number of due diligence sessions, drafting sessions meetings and rating agency meetings, as well as for participation in a reasonable number of meetings meetings, presentations, road shows and sessions with Debt Financing Sources; rating agencies and prospective sources of financing, (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel financing sources with obtaining the preparation of customary legal opinions required to be delivered materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents necessary, proper or advisable in connection with the Debt Financing; , (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection reasonably cooperate with the Debt Financing (subject to subclause (iv) marketing efforts of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt financing sources for any Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (viA) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all provide documentation and other information with respect relating to the Company and any of the Company Subsidiaries requested by Parent in writing (which may be via e-mail) and required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulationsregulations and (B) facilitate, including without limitation effective no earlier than the PATRIOT ActPartnership Merger Effective Time, the execution and delivery of definitive financing, pledge, security and guarantee documents relating to the Financing, (vi) as may be reasonably requested by Parent, within a reasonable time period prior to the Closing, form new direct or indirect Company Subsidiaries pursuant to documentation reasonably satisfactory to Parent and the Company, (vii) as may be reasonably requested by Parent, following the obtainment of the Company Requisite Vote and effective no earlier than immediately prior to the Partnership Merger Effective Time on the Closing Date and provided such actions would not adversely affect the Tax status of the Company or any of the Company Subsidiaries or cause the Company or any of the Company Subsidiaries to be subject to additional Taxes that are not indemnified by Parent under the last sentence of this Section 5.15(a), transfer or otherwise restructure its ownership of existing Company Subsidiaries, properties or other assets, in each case, pursuant to documentation reasonably satisfactory to Parent and the Company, (viii) provide reasonably timely and customary access to diligence materials, appropriate personnel and properties during normal business hours and on reasonable advance notice to allow sources of the Financing and their representatives to complete all reasonable due diligence, (ix) provide reasonable assistance with respect to the review and delivery of guarantees and granting of mortgages, pledges and security interests in collateral for the Financing (in each case, effective no earlier than the Partnership Merger Effective Time), and using commercially reasonable efforts to obtain any consents associated therewith (effective no earlier than the Partnership Merger Effective Time), (x) to the extent reasonably requested by the Debt a Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) source, using commercially reasonable best efforts to obtain estoppels and certificates from tenants, lenders, managers, franchisors, ground lessors and counterparties to REAs in form and substance reasonably satisfactory to any potential financing source, (xi) cooperate in connection with Parent to satisfy the conditions precedent to the Debt Financing that are within the control repayment or defeasance of any existing indebtedness of the Company or its Subsidiaries; any Company Subsidiaries as of the Partnership Merger Effective Time and the release of related Liens, including delivering such payoff, defeasance or similar notices under any existing loans of the Company or any of Company Subsidiaries as reasonably requested by Parent, (viiixii) providing such other reasonably available financial to the extent requested by Parent, obtain accountants’ comfort letters and other information with respect consents to the use of accountants’ audit reports relating to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Company Subsidiaries, (xiv) to the extent reasonably requested by a Financing source, permit Parent and their respective its Representatives be to conduct appraisal and environmental and engineering inspections of each real estate property owned and, subject to obtaining required third party consents with respect thereto (which the Company shall use reasonable efforts to provide any pro forma financial information or statementsobtain), leased by the Company or any of the Company Subsidiaries (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding (A) neither Parent nor its Representatives shall have the foregoingright to take and analyze any samples of any environmental media (including soil, groundwater, surface water, air or sediment) or any building material or to perform any invasive testing procedure on any such property, (iB) Parent shall schedule and coordinate all inspections with the Company in accordance with Section 5.2(a), and (C) the Company shall be entitled to have representatives present at all times during any such inspection); it being understood that, other than with respect to any obligation to deliver notice to or make a request of any Person, the Company shall have satisfied its obligations set forth in clauses (i)-(xiv) of this sentence if the Company shall have used its commercially reasonable efforts to comply with such obligations whether or not any applicable deliverables are actually obtained or provided. Notwithstanding the foregoing or anything in Section 5.15, nothing herein shall require the Company, its any of the Company Subsidiaries or any of their respective Representatives to take any action to the extent that it would be effective (i) unreasonably interfere with the business or operations of the Company or the Company Subsidiaries or require the Company or any of the Company Subsidiaries or any of their Representatives to agree to (or to actually) pay any fees incur or reimburse any expenses, or incur any liability prior to the Closing Partnership Merger Effective Time (other than as except those expenses for which the Company is immediately reimbursed by Parent) or (except to the extent expressly set forth in this Section 6.17clauses (vi) or, in and (vii) of the good faith judgment preceding sentence) have any obligation of the Company or any of its Subsidiariesthe Company Subsidiaries under any agreement, interfere unreasonably with certificate, document or instrument be effective prior to the business Partnership Merger Effective Time or operations of any of if the Closing does not occur, (ii) (A) cause the Company or the Company Subsidiaries to be an issuer or other obligor under the Financing prior to the Partnership Merger Effective Time, (B) require the Company, jeopardize the health and safety Company Subsidiaries or any Persons who are officers or directors of the Company or the Company Subsidiaries to (x) pass resolutions or consents to approve or authorize the execution of the Financing that are effective prior to the Partnership Merger Effective Time or (y) enter into, execute or deliver any certificate, document, instrument or agreement or agree to any change or modification of any employee existing certificate, document, instrument or agreement that is effective prior to the Partnership Merger Effective Time (it being understood that in no event shall any officer or director of the Company or any of its the Company Subsidiaries be required to take any such action described in light of COVID-19 the foregoing clause (x) or any COVID-19 Measures(y) unless such Person shall be continuing in such role following the Partnership Merger Effective Time, cause any condition and shall only be required to Closing to fail to be satisfied do so in such continuing capacity) or otherwise cause any breach of this Agreement by Parent or Merger Sub, (C) cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative stockholder of the Company or any of its the Company Subsidiaries shall be required to make incur any certifications personal liability, (iii) (A) contravene any applicable Law or conflict with or violate the organizational documents of the Company or any Company Subsidiary, (B) result in any breach or violation of or constitute a default by the Company or any Company Subsidiary under, or give to others any right of termination, acceleration or cancellation of any Company Material Contract to which the Company or any Company Subsidiary thereof is a party or by which the Company or a Company Subsidiary thereof or their respective properties or assets is bound or (C) require the Company or any Company Subsidiaries to disclose information subject to any attorney-client, attorney work product or other legal privilege to the extent that it does not reasonably the Company believes in good faith believe that doing so would be reasonably likely to be true. In additionresult in a risk of loss or waiver of attorney-client privilege, attorney work product or other legal privilege (provided, that the Company shall furnish Parent use commercially reasonable efforts to allow the disclosure of such information (or as much of it as reasonably promptly possible) in a manner that does not result in a loss of such privilege), (andiv) require the Company, in any eventCompany Subsidiary or any of their Representatives to (x) prepare any financial statements or other information other than information (A) the preparation and delivery of which is within the Company’s and the Company Subsidiaries’ control, prior (B) reasonably available to the ClosingCompany and the Company Subsidiaries and (C) with prepared by or for the financial statements identified Company or the Company Subsidiaries in paragraphs 6 and 7 of Exhibit C the ordinary course of the Debt Financing Commitment Letter Company’s financial reporting practice, or (y) prepare any pro forma financial information or post-closing financial information. None of the analogous provision in any commitment letter for any Alternative Debt Financing (provided that representations, warranties or covenants of the conditions Company set forth in such analogous provision this Agreement shall be not more burdensome deemed to apply to, or deemed breached or violated by, any of the actions taken by the Company at the request of Parent set forth in this Section 5.15(a). Parent shall, promptly upon request by the Company, reimburse the Company and the Company Subsidiaries for all reasonable out-of-pocket costs (including reasonable legal fees and disbursements) incurred by the Company or the Company Subsidiaries in performing their obligations under this Section 5.15(a), and indemnify the Company and the Company Subsidiaries for any respect and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by the Company or any of the Company Subsidiaries arising in connection with the arrangement of the Financing, any action taken by them pursuant to this Section 5.15(a) and any information used in connection therewith (other than those contained information provided in writing by the Debt Financing Commitment Letter as Company or the Company Subsidiaries specifically in effect on the date of connection with their obligations pursuant to this AgreementSection 5.15(a)).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ps Business Parks, Inc./Md)
Financing. (a) Prior Although Parent’s and Purchaser’s obligations hereunder are not conditioned on Parent’s or Purchaser’s obtaining any financing of any kind whatsoever, the Company acknowledges that Parent and Purchaser will be seeking debt financing with respect to the transactions contemplated hereunder prior to the Closing. In connection with such efforts and without creating any financing contingency for any purpose, the Company shall use reasonable best effortsprovide, and shall cause its the Company Subsidiaries to use reasonable best effortsprovide, and shall use commercially reasonable best efforts to cause their and their Subsidiaries’ respective RepresentativesRepresentatives to provide, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide reasonable cooperation to Parent all cooperation reasonably requested by Parent, and Purchaser in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms any efforts to obtain debt financing to replace a portion of the Debt Financing Commitment Letter and/or arrangingFinancing, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: including (i) providing such financial and other information as Parent shall reasonably request in connection with any debt financing, (ii) meeting and participating in due diligence sessions with proposed lenders, (iii) assisting in the preparation of a one or more offering documents or confidential information memorandum memoranda for any of the debt financing and materials for rating agency presentations, (iv) reasonably cooperating with the marketing efforts for any debt financing, including providing assistance in the preparation for, and participating in, road shows, meetings, due diligence sessions and similar presentations to and with, among others, prospective lenders, investors and rating agencies and (v) taking such actions as may be reasonably requested to permit the prospective lenders involved in any debt financing to evaluate the Company’s assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and to establish bank and other customary marketing materials to be used accounts and blocked account agreements and lock box arrangements in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Dateforegoing; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require it is acknowledged and agreed by Parent that the Company, its the Company Subsidiaries or any and their Representatives shall only be required to engage in the cooperation activities provided above to the extent that such activities do not interfere with the day-to-day operations of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company businesses or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver payment of money by any legal privilege or work product protection of such party to any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective Person prior to the Closing, (iv) and provided further, that Parent and Purchaser shall reimburse the Company, the Company shall not be required to execute prior to the Closing Subsidiaries or their Representatives for any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents expenses incurred by such parties in connection with such cooperation if the Debt Financing, except for any execution Closing does not occur. The Company consents to the reasonable use of documents that are conditioned upon the Closing, (v) neither its and the Company nor Subsidiaries’ logos in connection with any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except debt financing in a manner customary for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)financing transactions.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Covad Communications Group Inc)
Financing. (a) Prior to the ClosingEffective Time, the Company shall use reasonable best effortsprovide, and shall cause its Subsidiaries to use reasonable best effortsto, and shall use its reasonable best efforts to cause their and their Subsidiaries’ respective Representatives, in each caseincluding legal and accounting, with appropriate seniority and expertise in the good faith judgement of the Companyto, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used Parent in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; the other transactions contemplated by this Agreement, including (iii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies, (ii) assisting with the preparation of materials for rating agency meetingspresentations, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary offering documents, private placement memoranda, bank information memoranda, prospectuses and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions similar documents required to be delivered in connection with the Debt Financing; , (iviii) permitting officers executing and delivering any pledge and security documents, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Parent (including a certificate of the chief financial officer of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company Subsidiary with respect to solvency matters and consents of accountants for use of their reports in a customary any materials relating to the Debt Financing) and otherwise reasonably facilitating the pledging of collateral, in each case effective on or after the Effective Time, (iv) furnishing Parent and its Financing sources with financial and other pertinent information regarding the Company as may be reasonably requested by Parent, including all financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act and of type and form required customarily included in private placements under Rule 144A of the Securities Act in respect of foreign private issuers (as such term is defined under the Exchange Act), to consummate the Debt Financing as offering of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested debt securities contemplated by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; Commitments, (viiv) using reasonable best efforts to cooperate with Parent obtain accountants’ comfort letters, legal opinions, surveys and title insurance as reasonably requested by Parent, (vi) using its commercially reasonable efforts to satisfy provide monthly financial statements (excluding footnotes) within 25 days of the conditions precedent end of each month prior to the Debt Closing Date, (vii) taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Financing that are within to evaluate the control Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (B) effective on or after the Company or its Subsidiaries; (viii) providing such other reasonably available financial Effective Time, establish bank and other information with respect to the Company accounts and its business as Parent or its Debt Financing Sources may reasonably request blocked account agreements and lock box arrangements in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiariesforegoing, and their respective Representatives be required to provide any pro forma financial information or statements), (ixviii) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of taking all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing reasonably necessary to permit the consummation of the Debt Financing and to permit the proceeds thereof to be made available to the Company (except for it being understood that (A) to the greatest Table of Contents extent practicable, the actions contemplated by this Section 7.9(a)(viii) shall not be required to be taken until immediately prior to the Closing and that prior to the taking of such actions, any corporate actions that are conditioned upon current member of the Board of Directors may resign and (B) if such member of the Board of Directors resigns, the failure of any such director to take any such action shall not constitute a failure to satisfy a condition to Closing). Parent shall, promptly upon request by the Company, reimburse, or cause its Affiliates to reimburse, the Company for all reasonable and (vi) no Representative documented out-of-pocket costs incurred by the Company or its Subsidiaries in connection with such cooperation. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing, provided that such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or the reputation or goodwill of the Company or any of and its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)marks.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Kerzner International LTD)
Financing. (a) Prior to the Closing, the Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause the Company Representatives to use their and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expensereasonable best efforts, to provide cooperation to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to Merger Sub as may be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) which for purposes of this Section 5.09 shall include any offering of senior unsecured notes of the proviso belowParent issued to refinance the Senior Bridge Facility (as defined in the Debt Commitment Letter), including (i) including any customary closing officer’s certificates providing to Parent and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of Merger Sub from time to time information regarding the Company and its Subsidiaries, Subsidiaries reasonably requested by the Financing Sources and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior reasonably available to the Closing Date; Company and assisting with the preparation of appropriate and customary materials for rating agency presentations, offering and syndication documents (v) furnishing a certificate of a financial officer of the Company including prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda and similar documents), business projections and other marketing documents required in connection with respect to solvency matters in a customary form required to consummate the Debt Financing (all such documents and materials, collectively the “Offering Documents”) and identifying any portion of any information contained in any Offering Documents that constitutes material non-public information as of the Closing Dateto any Group Company; (viii) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities Governmental Entities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT ActU.S.A. Patriot Act of 2001, and but in each case, solely as relating to the Company and its Subsidiaries to the extent reasonably requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing DateParent and Merger Sub; (viiiii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control obtain (A) customary evidence of the Company or its Subsidiaries; (viii) providing such other authority, customary officer’s certificates and customary insurance certificates, in each case, as reasonably available financial and other information with respect to the Company and its business as requested by Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing Merger Sub and (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ixiv) assisting in the execution and delivery of, and the preparation of customary one or more credit agreements (or joinders thereto), pledge and security documents and other definitive financing documentation documents as may be reasonably requested by Parent so long as such agreements, indentures and documents do not become effective prior to the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing DateClosing; provided, however, that notwithstanding the foregoing, (i) nothing herein in this Agreement shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior such cooperation to the Closing (other than as expressly set forth in this Section 6.17) orextent it would, in the good faith judgment of the Company or any of its SubsidiariesCompany’s reasonable judgment, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries Subsidiaries; and provided, further, that notwithstanding anything in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Subto the contrary, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor any of its Affiliates, directors, officers, employees, agents and Representatives Subsidiaries shall (A) be required to pay any commitment or other similar fee prior to the Effective Time, (B) have any liability or make obligation under any loan agreement or any related document or any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17agreement or document related to the Debt Financing prior to the Effective Time,(C) or be required to incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the ClosingEffective Time, (ivD) the Company shall not be required to execute prior deliver any audited financial statements, to the Closing any definitive financing documents extent not available to the Company, or (other than customary representation E) be required to deliver or obtain opinions of internal or external counsel. The Company hereby consents to the use of its and authorization letters), including any other certificates or documents its Subsidiaries’ logos in connection with marketing materials for the Debt Financing; provided, except for any execution of documents however, that such logos are conditioned upon the Closing, (v) neither used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company nor or any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to or the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative reputation or goodwill of the Company or any of its Subsidiaries Subsidiaries. Parent shall be required to make any certifications that it does not reasonably in good faith believe to be true. In additionpromptly, upon request by the Company, reimburse the Company shall furnish Parent reasonably promptly for any reasonable out-of-pocket expenses (and, including reasonable attorney’s fees) incurred by the Company or any of its Affiliates in any event, prior to the Closing) connection with the financial statements identified in paragraphs 6 and 7 of Exhibit C cooperation of the Debt Financing Commitment Letter (Company contemplated by this Section 5.09. Parent and Merger Sub shall refrain from taking, directly or indirectly, any action that would reasonably be expected to result in the analogous provision in failure of any commitment letter for any Alternative Debt Financing (provided that of the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as or in effect on any definitive agreement relating to the date Debt Financing. Parent and Merger Sub acknowledge and agree that, notwithstanding the Company’s obligations under this Section 5.09, neither the obtaining of the Debt Financing or any alternative financing, nor the completion of any issuance of securities contemplated by the Debt Financing is a condition to the Closing, and reaffirm their obligation to consummate the transactions contemplated by this Agreement)Agreement irrespective and independently of the availability of the Debt Financing or any alternative financing or the completion of any such issuance, subject to the satisfaction of the conditions set forth in Section 7.01.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Par Pharmaceutical Companies, Inc.)
Financing. (a) Prior to the Closing, the Company shall use reasonable best efforts, and shall cause its Subsidiaries to use reasonable best effortsshall, and shall use their commercially reasonable best efforts to cause their and their Subsidiaries’ the respective Representatives, in each case, with appropriate seniority and expertise in the good faith judgement Representatives of the CompanyCompany and its Subsidiaries to, at Parent’s sole cost and expense, to provide to Parent all cooperation cooperate as reasonably requested by Parent, Parent in connection with arrangingany equity, syndicating, consummating and obtaining the Debt Financing under and debt or other financing sought by Parent or its Affiliates in accordance connection with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing transactions contemplated by this Agreement (collectively, the “Debt Financing”), including: , without limitation (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreednotice, participation of representatives of by the Company’s senior management of the Company (which participation may be by videoconference) officers and other Representatives in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies, (ii) assisting with the preparation of customary materials for syndication documents, including rating agency meetingspresentations, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary bank confidential information memoranda, business projections and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions similar documents required to be delivered in connection with the Debt Financing; , (iii) using commercially reasonable efforts to cause its independent accountants to provide assistance and cooperation to Parent, including participating in drafting sessions and accounting due diligence sessions and providing consent to Parent to use their audit reports relating to the Company, (iv) permitting officers using commercially reasonable efforts to obtain consents, approvals, authorizations, customary payoff letters, and instruments of termination and discharge reasonably requested by Parent, (v) preparing and furnishing all financial and other pertinent information regarding the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute reasonably requested by Parent, including all financial statements, pro forma financial statements and deliver any documentation other financial data required in connection with the Debt Financing Financing, (vi) providing reasonable access (subject to subclause execution of non-disclosure and confidentiality agreements reasonably acceptable to the Company) to prospective lenders involved in the Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for purposes of establishing collateral arrangements and cooperating with prospective lenders to establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing; provided that no such accounts, agreements or arrangements shall be effective prior to the Effective Time, (ivvii) of executing and delivering definitive financing documents, including credit agreements, intercreditor agreements, pledge and security documents, and certificates, legal opinions, or other documents, to the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared extent reasonably requested by Parent (including certification and otherwise reasonably facilitating the pledging of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financingcollateral, provided that any of the foregoing no such documents or agreements shall not require the adoption of any corporate resolutions or actions be effective prior to the Closing Date; Effective Time, (vvii) furnishing a certificate of a financial officer of assisting Parent in obtaining corporate and facilities ratings for the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; Financing, and (viviii) furnishing Parent promptly (and in any event at least five Business Days prior to lenders involved with the Closing Date) Financing, with all documentation and other information required by any Governmental Entity with respect to the Company required by regulatory authorities Financing under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding . Notwithstanding the foregoing, : (i) nothing herein such requested cooperation shall require not unreasonably interfere with the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment ongoing operations of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health ; and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor any of its Affiliates, directors, officers, employees, agents and Representatives Subsidiaries shall be required to pay any commitment or other similar fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing. Parent shall (A) promptly upon request by the Company, (iv) reimburse the Company shall not be required to execute prior to for all reasonable and documented out-of-pocket fees and expenses of the Closing any definitive financing documents (other than customary representation Company and authorization letters), including any other certificates or documents its Subsidiaries and all reasonable and documented fees and expenses of their counsel and accountants incurred in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing)such requested cooperation, and (viB) no Representative of indemnify the Company or any of Company, its Subsidiaries shall be required and its Affiliates against any claim, loss, damage, injury, liability, Judgment, award, penalty, fine, Tax, cost (including cost of investigation), expense (including reasonable fees and expenses of counsel) or settlement payment incurred as a result of such cooperation (including any claim by or with respect to make any certifications that it does not reasonably in good faith believe to be true. In additionsuch lenders, the Company shall furnish Parent reasonably promptly (andprospective lenders, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 agents and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreementarrangers and ratings agencies).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Caribou Coffee Company, Inc.)
Financing. (a) Prior to the Closing, the Company shall use reasonable best efforts, provide and shall cause its Subsidiaries each Subsidiary of the Company and their respective Representatives to use reasonable best effortsprovide, and each Selling Party shall use reasonable best efforts to cause their the Company and each Subsidiary of the Company and their Subsidiaries’ respective RepresentativesRepresentatives to provide, in each case, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing Debt Financing reasonably requested by the Purchasing Parties, provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Debt Financing Selling Parties and ratings their Subsidiaries (including the Company and its Subsidiaries), including (i) participation in meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, (ii) assisting with the preparation of materials for rating agency presentations and delivering customary representation offering documents, private placement memoranda, bank information memoranda, prospectuses, business projections and authorization letters in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of due diligence sessions, drafting sessions and rating agency meetings, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions similar documents required to be delivered in connection with the Debt Financing; (iv) permitting officers , including execution and delivery of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation customary representation letters in connection with the Debt Financing bank information memoranda, (subject to subclause (iviii) executing and delivering, as of the proviso below) including Closing, any customary closing officer’s pledge and security documents, other definitive financing documents, other certificates and secretary’s certificates prepared or documents as may be reasonably requested by Parent the Purchasing Parties (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer the Chief Financial Officer of the Company with respect to solvency matters matters) and otherwise reasonably facilitating the pledging of collateral, (iv) as promptly as practical, furnishing the Purchasing Parties and their financing sources with financial and other pertinent information regarding the Company as may be reasonably requested by the Purchasing Parties, including all related financial statements, and financial data and other information of the type and form customarily included in a customary form required private placements under Rule 144A under the Securities Act to consummate the Debt Financing as offering(s) of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested debt securities contemplated by the Debt Financing Sources in writing at least ten Business Days prior to Commitments (the Closing Date; “Required Information”), (viiv) using reasonable best efforts to cooperate (y) obtain accountants’ comfort letters, accountants’ consents and legal opinions and (z) with Parent respect to satisfy any properties for which the conditions precedent Purchasing Parties’ lenders request surveys and/or mortgagee title insurance, using reasonable best efforts to obtain title insurance in customary form for commercial real estate transactions and providing the Purchasing Parties and their agents with reasonable access to the applicable properties in connection with the Purchasing Parties’ surveys, in either of clause (y) or (z), at the Purchasing Parties’ expense, as reasonably requested by the Purchasing Parties; (vi) permitting the prospective lenders involved in the Debt Financing that are within to identify and evaluate the control of the Company or Company’s and its Subsidiaries’ assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements; (vii) without limitation of Section 5.06, using reasonable best efforts to obtain waivers, consents, estoppels and approvals from other parties to Company Leases and Contracts and to arrange discussions among the Purchasing Parties and their financing sources with other parties to material leases, encumbrances and contracts, and (viii) providing such other reasonably available financial and other information with respect taking all reasonable actions necessary to permit the consummation of the Financing contemplated by the Financing Commitments; provided, that none of the Selling Parties or any of their Subsidiaries (including the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other similar fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing Financing. The Purchasing Parties shall, promptly upon request by the Seller Parent, reimburse Seller Parent for all reasonable out-of-pocket costs incurred by the Selling Parties or provide or agree to provide any indemnity of their Subsidiaries (including the Company and its Subsidiaries) in connection with such cooperation, including any payments or concessions made in connection with clauses (vii) and (viii) above. The Purchasing Parties shall indemnify and hold harmless the Selling Parties, their Subsidiaries (including the Company and its Subsidiaries) and their respective Representatives from and against any and all losses suffered or incurred by them in connection with (1) any action taken by them at the request of the Purchasing Parties pursuant to this Section 5.04 or in connection with the arrangement of the Debt Financing or and (2) any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents information utilized in connection therewith (other than information provided by the Selling Parties and their Subsidiaries (including the Company and its Subsidiaries)). All non-public or otherwise confidential information regarding the Company obtained by the Purchasing Parties pursuant to this Section 5.04 shall be kept confidential in accordance with the Confidentiality Agreement; provided, however, that the Purchasing Parties and their Representatives shall be permitted to disclose information as necessary and consistent with customary representation and authorization letters), including any other certificates or documents practices in connection with the Debt Financing, except for any execution of documents that are conditioned Financing upon the Closingprior written consent of Seller Parent (such consent not to be unreasonably withheld, (v) neither conditioned or delayed). The Selling Parties shall cause the Company nor any of and its Subsidiaries (nor and their respective governing bodies) shall Representatives to update, when requested by the Purchasing Parties, any such Required Information to be required included in an offering document to take be used in connection with such Financing in order to ensure that such Required Information does not contain any corporate actions prior untrue statement of a material fact or omit to the Closing to permit the consummation of the Debt Financing (except for state any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required material fact necessary in order to make any certifications that it does the statements contained therein not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)misleading.
Appears in 1 contract
Financing. (a) Prior to the Closing, the Company shall use reasonable best effortsSeller shall, and shall cause its the Company and the Company Subsidiaries to use reasonable best effortsto, provide, and shall use its reasonable best efforts to cause their respective Affiliates, officers, directors, employees, stockholders, agents and their Subsidiaries’ respective Representativesother Representatives (including legal, in each casefinancial and accounting advisors) to provide, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating Buyer and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used Sources in connection with the marketing arrangement of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; Financing, including (iii) upon reasonable prior notice and at times other than with respect to be reasonably agreed, participation of representatives of senior the executive management of the Company (which participation may be by videoconference) Seller, participating in a reasonable number of meetings, presentations, due diligence sessions, drafting sessions and sessions with rating agencies at times and locations mutually agreed and reasonably coordinated in advance thereof (but excluding road shows and similar presentations to investors), (ii) assisting with the preparation of materials for rating agency meetingspresentations, as well as a reasonable number of meetings with Debt Financing Sources; offering and syndication documents (iii) providing customary including prospectuses, offering memoranda, lender and investor presentations, bank information memoranda, lender and assistance reasonably necessary to assist Parent investor presentations, bank information memoranda and its counsel with obtaining the customary legal opinions similar documents), business, projections and other marketing documents required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject all such documents and materials, collectively the “Offering Documents”), identifying any portion of any information provided by on or behalf of Seller, the Company or the Company Subsidiaries contained in any Offering Documents that constitutes material nonpublic information, and executing and delivering customary authorization and customary representation and warranty letters with respect to subclause information provided by or on behalf of Seller, the Company or the Company Subsidiaries, (iii) promptly furnishing to Buyer and any actual and potential Financing Sources with the Required Information and such other information regarding the Company and the Company Subsidiaries as may be reasonably requested by Buyer or the Financing Sources, (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) , furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to about the Company and the Company Subsidiaries required by regulatory authorities any governmental authority under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S.A. PATRIOT Act, and in each case, Act of 2001 as shall have been requested by the Debt Financing Sources in writing at least ten Business Days Buyer prior to the Closing DateDate and within the time period set forth in paragraph 10 of Exhibit C of the Debt Financing Commitment and are required to satisfy such paragraph, (v) arranging for, as reasonably necessary, customary payoff letters, Lien terminations and instruments of discharge and all other actions necessary to effect the repayment in full or termination and discharge of any indebtedness or guarantees of the Company and the Company Subsidiaries to be paid off, terminated or discharged on or prior to the Closing Date or to otherwise reflect the release of all Liens on or with respect to the Interest and the Assets of the Company and the Company Subsidiaries, provided that any such obligations and releases of Liens contained in all such agreements and documents shall be subject to the occurrence of the Closing, (vi) facilitating the providing of guarantees by, and the granting of security interests (and perfection thereof) in the Interest, the equity interests of the Company Subsidiaries and the Assets of, the Company and the Company Subsidiaries (including delivery substantially concurrently with the Closing of all stock certificates (as applicable) representing equity interests in the Company and the Company Subsidiaries to the extent certificated); provided that the effectiveness of any such guarantees or grants of security interests (or delivery of stock certificates) shall be subject to the occurrence of the Closing, (vii) using reasonable best efforts to cooperate the extent reasonably requested by Buyer, assisting in the review of any definitive documents and assisting in Buyer’s preparation of any schedules thereto or any perfection certificate to the extent reflecting the Company and the Company Subsidiaries and each of their respective assets for the Debt Financing, and (viii) facilitating the consummation of the Debt Financing, including cooperating with Parent Buyer so as to facilitate Buyer being able to satisfy the conditions precedent to the Debt Financing that are to the extent reasonably requested by Buyer and within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required taking any reasonable corporate action, subject to provide the occurrence of the Closing, reasonably requested by Buyer to permit the execution and delivery of any pro forma financial information or statements)definitive financing documents. The foregoing notwithstanding, (ixu) assisting in the preparation none of customary definitive financing documentation and the completion of any schedulesSeller, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, the Company Subsidiaries shall be required to take or permit the taking of any action to the extent it would (1) interfere unreasonably with the business or operations of the Seller, the Company or any of the Company, jeopardize Company Subsidiaries or (2) conflict with the health and safety of any employee organizational documents of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company Subsidiaries or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (iiv) the provision of access to or disclosure of information shall be subject to the limitations set forth in Section 5.01, (w) no person who is a director of the Company or any Company Subsidiary at any time prior to the Closing (a “Pre-Closing Director”) shall not be required to disclose take any information action to Parent approve the Debt Financing and neither the Company nor any Company Subsidiary shall be obligated to take any action that requires action or approval by any Pre-Closing Director of the Debt Financing, (x) no obligation of the Company or the Company Subsidiaries or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result Affiliates, officers, directors, employees, stockholders, agents and other Representatives with respect to the Debt Financing shall be effective until the Closing (other than with respect to any authorization and representation and warranty letters described in clause (a)(ii) above), and (y) none of Seller, the waiver of any legal privilege Company or work product protection of any of the Company Subsidiaries or its any of their respective Affiliates, officers, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employeesstockholders, agents and Representatives representatives shall be required to pay any commitment or other fee similar fee, and (z) none of the Seller, the Company or make any other payment (other than fees of the Company Subsidiaries or any of their respective Affiliates, officers, directors, employees, stockholders, agents and costs which are reimbursed by Parent in accordance with this Section 6.17) or representatives shall be required to incur any other liability cost or expense except to the extent such cost or expense (i) is reimbursed by Buyer in connection with the Debt Financing prior to or provide at the Closing or agree to provide any indemnity (ii) solely in the case of the Company and the Company Subsidiaries, is contingent upon the Closing. Buyer shall, promptly upon request by Seller, reimburse the Company, the Company Subsidiaries and their respective Affiliates, officers, directors, employees, stockholders, agents and representatives for all reasonable and documented out-of-pocket costs incurred thereby in connection with any Debt Financing or any of such cooperation and shall indemnify and hold harmless the foregoing that would be effective prior to the ClosingCompany, (iv) the Company shall not be required to execute prior to the Closing Subsidiaries and their respective Affiliates, officers, directors, employees, stockholders, agents and other Representatives for and against any definitive financing documents (other than customary representation and authorization letters), including any other certificates all losses suffered or documents incurred by them in connection with the arrangement of the Debt FinancingFinancing and any information utilized in connection therewith, except for any execution losses (x) arising out of documents information furnished in connection with the Financing by or on behalf of Seller, the Company, the Company Subsidiaries or any of their respective Affiliates, officers, directors, employees, stockholders, agents and other Representatives or (y) that are conditioned upon the Closingresult of willful misconduct, (v) neither gross negligence, fraud or intentional misrepresentation committed by or on behalf of Seller, the Company, the Company nor Subsidiaries or any of its Subsidiaries (nor their respective governing bodiesAffiliates, officers, directors, employees, stockholders, agents and other Representatives in connection with this Agreement or the Transactions. All non-public or otherwise confidential information regarding Seller, the Company, the Company Subsidiaries and their respective Affiliates obtained by Buyer and its Affiliates, officers, directors, employees, stockholders, agents and representatives pursuant to this Section 8.08(a) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably kept confidential in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) accordance with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Confidentiality Agreement).
Appears in 1 contract
Financing. (a) Prior to the Closing, the Company shall use reasonable best effortsSeller shall, and shall cause its the Company and the Company Subsidiaries to use reasonable best effortsto, provide, and shall use its reasonable best efforts to cause their respective Affiliates, officers, directors, employees, stockholders, agents and their Subsidiaries’ respective Representativesother Representatives (including legal, in each casefinancial and accounting advisors) to provide, with appropriate seniority and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating Buyer and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting in the preparation of a confidential information memorandum and other customary marketing materials to be used Sources in connection with the marketing arrangement of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; Financing, including (iii) upon reasonable prior notice and at times other than with respect to be reasonably agreed, participation of representatives of senior the executive management of the Company (which participation may be by videoconference) Seller, participating in a reasonable number of meetings, presentations, due diligence sessions, drafting sessions and sessions with rating agencies at times and locations mutually agreed and reasonably coordinated in advance thereof (but excluding road shows and similar presentations to investors), (ii) assisting with the preparation of materials for rating agency meetingspresentations, as well as a reasonable number of meetings with Debt Financing Sources; offering and syndication documents (iii) providing customary including prospectuses, offering memoranda, lender and investor presentations, bank information memoranda, lender and assistance reasonably necessary to assist Parent investor presentations, bank information memoranda and its counsel with obtaining the customary legal opinions similar documents), business, projections and other marketing documents required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject all such documents and materials, collectively the “Offering Documents”), identifying any portion of any information provided by on or behalf of Seller, the Company or the Company Subsidiaries contained in any Offering Documents that constitutes material nonpublic information, and executing and delivering customary authorization and customary representation and warranty letters with respect to subclause information provided by or on behalf of Seller, the Company or the Company Subsidiaries, (iii) promptly furnishing to Buyer and any actual and potential Financing Sources with the Required Information and such other information regarding the Company and the Company Subsidiaries as may be reasonably requested by Buyer or the Financing Sources, (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) , furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to about the Company and the Company Subsidiaries required by regulatory authorities any governmental authority under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S.A. PATRIOT Act, and in each case, Act of 2001 as shall have been requested by the Debt Financing Sources in writing at least ten Business Days Buyer prior to the Closing DateDate and within the time period set forth in paragraph 10 of Exhibit C of the Debt Financing Commitment and are required to satisfy such paragraph, (v) arranging for, as reasonably necessary, customary payoff letters, Lien terminations and instruments of discharge and all other actions necessary to effect the repayment in full or termination and discharge of any indebtedness or guarantees of the Company and the Company Subsidiaries to be paid off, terminated or discharged on or prior to the Closing Date or to otherwise reflect the release of all Liens on or with respect to the Interest and the Assets of the Company and the Company Subsidiaries, provided that any such obligations and releases of Liens contained in all such agreements and documents shall be subject to the occurrence of the Closing, (vi) facilitating the providing of guarantees by, and the granting of security interests (and perfection thereof) in the Interest, the equity interests of the Company Subsidiaries and the Assets of, the Company and the Company Subsidiaries (including delivery substantially concurrently with the Closing of all stock certificates (as applicable) representing equity interests in the Company and the Company Subsidiaries to the extent certificated); provided that the effectiveness of any such guarantees or grants of security interests (or delivery of stock certificates) shall be subject to the occurrence of the Closing, (vii) using reasonable best efforts to cooperate the extent reasonably requested by Buyer, assisting in the review of any definitive documents and assisting in Buyer’s preparation of any schedules thereto or any perfection certificate to the extent reflecting the Company and the Company Subsidiaries and each of their respective assets for the Debt Financing, and (viii) facilitating the consummation of the Debt Financing, including cooperating with Parent Buyer so as to facilitate Buyer being able to satisfy the conditions precedent to the Debt Financing that are to the extent reasonably requested by Buyer and within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required taking any reasonable corporate action, subject to provide the 42 occurrence of the Closing, reasonably requested by Buyer to permit the execution and delivery of any pro forma financial information or statements)definitive financing documents. The foregoing notwithstanding, (ixu) assisting in the preparation none of customary definitive financing documentation and the completion of any schedulesSeller, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, the Company Subsidiaries shall be required to take or permit the taking of any action to the extent it would (1) interfere unreasonably with the business or operations of the Seller, the Company or any of the Company, jeopardize Company Subsidiaries or (2) conflict with the health and safety of any employee organizational documents of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company Subsidiaries or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (iiv) the provision of access to or disclosure of information shall be subject to the limitations set forth in Section 5.01, (w) no person who is a director of the Company or any Company Subsidiary at any time prior to the Closing (a “Pre-Closing Director”) shall not be required to disclose take any information action to Parent approve the Debt Financing and neither the Company nor any Company Subsidiary shall be obligated to take any action that requires action or approval by any Pre-Closing Director of the Debt Financing, (x) no obligation of the Company or the Company Subsidiaries or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result Affiliates, officers, directors, employees, stockholders, agents and other Representatives with respect to the Debt Financing shall be effective until the Closing (other than with respect to any authorization and representation and warranty letters described in clause (a)(ii) above), and (y) none of Seller, the waiver of any legal privilege Company or work product protection of any of the Company Subsidiaries or its any of their respective Affiliates, officers, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employeesstockholders, agents and Representatives representatives shall be required to pay any commitment or other fee similar fee, and (z) none of the Seller, the Company or make any other payment (other than fees of the Company Subsidiaries or any of their respective Affiliates, officers, directors, employees, stockholders, agents and costs which are reimbursed by Parent in accordance with this Section 6.17) or representatives shall be required to incur any other liability cost or expense except to the extent such cost or expense (i) is reimbursed by Buyer in connection with the Debt Financing prior to or provide at the Closing or agree to provide any indemnity (ii) solely in the case of the Company and the Company Subsidiaries, is contingent upon the Closing. Buyer shall, promptly upon request by Seller, reimburse the Company, the Company Subsidiaries and their respective Affiliates, officers, directors, employees, stockholders, agents and representatives for all reasonable and documented out-of-pocket costs incurred thereby in connection with any Debt Financing or any of such cooperation and shall indemnify and hold harmless the foregoing that would be effective prior to the ClosingCompany, (iv) the Company shall not be required to execute prior to the Closing Subsidiaries and their respective Affiliates, officers, directors, employees, stockholders, agents and other Representatives for and against any definitive financing documents (other than customary representation and authorization letters), including any other certificates all losses suffered or documents incurred by them in connection with the arrangement of the Debt FinancingFinancing and any information utilized in connection therewith, except for any execution losses (x) arising out of documents information furnished in connection with the Financing by or on behalf of Seller, the Company, the Company Subsidiaries or any of their respective Affiliates, officers, directors, employees, stockholders, agents and other Representatives or (y) that are conditioned upon the Closingresult of willful misconduct, (v) neither gross negligence, fraud or intentional misrepresentation committed by or on behalf of Seller, the Company, the Company nor Subsidiaries or any of its Subsidiaries (nor their respective governing bodiesAffiliates, officers, directors, employees, stockholders, agents and other Representatives in connection with this Agreement or the Transactions. All non-public or otherwise confidential information regarding Seller, the Company, the Company Subsidiaries and their respective Affiliates obtained by Buyer and its Affiliates, officers, directors, employees, stockholders, agents and representatives pursuant to this Section 8.08(a) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably kept confidential in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) accordance with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Confidentiality Agreement).
Appears in 1 contract
Financing. (a) Prior Subject to applicable Law, prior to the Closing, the Company shall use reasonable best effortsshall, and shall cause its the Company Subsidiaries to use reasonable best effortsto, and shall use commercially reasonable best efforts to to, cause their its and their the Company Subsidiaries’ respective RepresentativesRepresentatives to, provide all cooperation reasonably requested in each case, writing by Parent in connection with appropriate seniority and expertise in the good faith judgement of Parent arranging financing with respect to the Company, at Parent’s sole cost the Company Subsidiaries or the Company Real Properties effective as of or after (and expenseconditioned on the occurrence of) the Partnership Merger Effective Time (collectively, the “Financing”), including using commercially reasonable efforts to provide (i) furnish such financial, statistical and other pertinent information and projections relating to Parent all cooperation the Company and the Company Subsidiaries as may be reasonably requested by Parent, in connection with arranging, syndicating, consummating within the Company’s and obtaining the Debt Financing under Company Subsidiaries’ control and in accordance with customarily prepared by or for the terms of Company or the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting Company Subsidiaries in the preparation ordinary course of a confidential information memorandum and other customary marketing materials to be used in connection with the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; business, (ii) upon reasonable prior notice and at times to be reasonably agreed, participation of representatives of senior management make appropriate officers of the Company (which participation may be by videoconference) in and the Company Subsidiaries available at reasonable times for a reasonable number of due diligence sessions, drafting sessions meetings and rating agency meetings, as well as for participation in a reasonable number of meetings meetings, presentations, road shows and sessions with Debt Financing Sources; rating agencies and prospective sources of financing, (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel financing sources with obtaining the customary legal opinions required to be delivered preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents necessary, proper or advisable in connection with the Debt Financing; , (iv) permitting officers reasonably cooperate with the marketing efforts of Parent and its financing sources for any Financing to be raised by Parent to complete the Mergers and the other transactions contemplated by this Agreement, (v) provide and execute documents as may be reasonably requested by Parent and reasonably acceptable to the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt such Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with including all documentation and other information with respect to the Company required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulationsregulations (provided, including without limitation that neither the PATRIOT ActCompany nor any Company Subsidiary shall be required to enter into any agreement related to any Financing that is not effective as of or immediately prior to and conditioned on the occurrence of the Partnership Merger Effective Time), (vi) as may be reasonably requested by Parent, following the obtainment of the Company Requisite Vote, form new direct or indirect Company Subsidiaries pursuant to documentation reasonably satisfactory to Parent and the Company, (vii) as may be reasonably requested by Parent, following the obtainment of the Company Requisite Vote and provided such actions would not adversely affect the Tax status of the Company or Company Subsidiaries or cause the Company to be subject to additional Taxes that are not indemnified by Parent under the last sentence of this Section 5.17(a), transfer or otherwise restructure its ownership of existing Company Subsidiaries, properties or other assets, in each case, pursuant to documentation reasonably satisfactory to Parent and the Company, (viii) provide timely access to diligence materials, appropriate personnel and properties during normal business hours and on reasonable advance notice to allow sources of financing and their representatives to complete all reasonable due diligence, (ix) provide assistance with respect to the review and granting of mortgages and security interests in collateral for the Financing, and attempting to obtain any consents associated therewith, (x) to the extent reasonably requested by a lender, attempt to obtain estoppels and certificates from tenants, lenders, managers, franchisors, ground lessors and counterparties to REAs in form and substance reasonably satisfactory to any potential lender, (xi) cooperate in connection with the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control repayment or defeasance of any existing indebtedness of the Company or its Subsidiaries; any Company Subsidiaries as of the Partnership Merger Effective Time and the release of related liens, including delivering such payoff, defeasance or similar notices under any existing loans of the Company or any of Company Subsidiaries as reasonably requested by Parent, (viiixii) providing such other reasonably available financial to the extent requested by Parent, obtain accountants’ comfort letters and other information with respect consents to the use of accountants’ audit reports relating to the Company and the Company Subsidiaries and (xiii) to the extent reasonably requested by a lender, permit Parent and its business as Representatives to conduct appraisal and environmental and engineering inspections of each real estate property owned and, subject to obtaining required third party consents with respect thereto (which the Company shall use reasonable efforts to obtain), leased by the Company or any of the Company Subsidiaries (provided, however, that (A) neither Parent nor its Representatives shall have the right to take and analyze any samples of any environmental media (including soil, groundwater, surface water, air or its Debt Financing Sources may reasonably request in connection sediment) or any building material or to perform any invasive testing procedure on any such property, (B) Parent shall schedule and coordinate all inspections with the Debt Financing (provided that Company in no event shall the Company, its Subsidiariesaccordance with Section 5.2(a), and their respective Representatives (C) the Company shall be required entitled to provide have representatives present at all times during any pro forma financial information or statementssuch inspection), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior such cooperation to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, extent it would unreasonably interfere unreasonably with the business or operations of the Company or the Company Subsidiaries or require the Company to agree to pay any fees, reimburse any expenses, or give any indemnities prior to the Partnership Merger Effective Time (except those fees and expenses that the Company is reimbursed for by Parent). None of the representations, warranties or 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 at the request of Parent set forth in this Section 5.17(a). Parent shall, promptly upon request by the Company, jeopardize reimburse the health Company for all reasonable out-of-pocket costs (including reasonable legal fees and safety of disbursements) incurred by the Company or the Company Subsidiaries in performing their obligations under this Section 5.17(a), and indemnify the Company and the Company Subsidiaries for any employee of and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by the Company or any of its the Company Subsidiaries arising therefrom (and in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of the event the Mergers and the other transactions contemplated by this Agreement are not consummated, Parent shall promptly reimburse the Company for any reasonable out-of-pocket costs incurred by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall Subsidiaries not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreementpreviously reimbursed).
Appears in 1 contract
Financing. (a) Prior From the date hereof until the earlier of (a) the Closing Date and (b) termination of this Agreement pursuant to the ClosingSection 8.01, the Company Biovail and Valeant shall use reasonable best effortsuse, and shall cause its the Biovail Subsidiaries and Valeant Subsidiaries, respectively, to use reasonable best effortsuse, and shall use their respective reasonable best efforts to take, or cause their to be taken, all actions and their Subsidiaries’ respective Representativesto do, in each caseor cause to be done, with appropriate seniority all things necessary, proper or advisable to arrange the financing and expertise related transactions (including the payment, refinancing and tendering of existing indebtedness) (the “Financing”) described in the good faith judgement of the Company, at Parent’s sole cost and expense, to provide to Parent all cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing executed commitment letter attached hereto as Exhibit C (collectively, the “Debt FinancingCommitment Letter”), including: including using reasonable best efforts to (i) assisting in negotiate and enter into definitive agreements with respect thereto on the preparation of a confidential information memorandum terms and other customary marketing materials to be used in connection with conditions contemplated by the marketing of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters in connection therewith; Commitment Letter, (ii) upon reasonable satisfy on a timely basis all conditions to obtaining the Financing set forth therein and (iii) consummate the Financing at or prior notice and at times to be reasonably agreedClosing, participation of representatives of senior management of the Company including (which participation may be by videoconferenceA) participating in a reasonable number of meetings, road shows, rating agency sessions and drafting sessions, and participating in reasonable and customary due diligence, (B) furnishing the financial institutions providing or arranging the Financing (the “Financing Sources”) with such financial and other pertinent information as may be reasonably requested to consummate the Financing, including all financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act (including any required audits thereof, which shall be unqualified) and of the type and form customarily included in private placements pursuant to Rule 144A promulgated under the Securities Act, (C) assisting the Financing Sources in the preparation of (1) an offering document for any portion of the Financing and (2) materials for rating agency presentations, (D) reasonably cooperating with the marketing efforts for any portion of the Financing and (E) causing their respective independent accountants to provide assistance and cooperation in the Financing, including (1) participating in a reasonable number of drafting sessions and accounting due diligence sessions, drafting sessions and rating agency meetings(2) providing any necessary consents to use their audit reports relating to Biovail or Valeant, as well as a reasonable number of meetings with Debt Financing Sources; applicable, and (iii3) providing customary information any necessary “comfort letters.” Biovail and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions required to be delivered in connection with the Debt Financing; (iv) permitting officers of the Company or any of its Subsidiaries who will be officers of the Company or any of its Subsidiaries after Closing to execute and deliver any documentation in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its SubsidiariesValeant shall, and taking corporate shall cause their respective Subsidiaries to, refrain from taking, directly or indirectly, any action that would reasonably be expected to authorize result in the borrowing and guarantees failure of the Debt Financing, provided that any of the foregoing shall not require conditions contained in the adoption of Commitment Letter or in any corporate resolutions or actions prior definitive agreement related to the Closing Date; (v) furnishing a certificate of a financial officer Financing. In the event any portion of the Company with respect to solvency matters Financing becomes unavailable on the terms and conditions set forth in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (Commitment Letter, Biovail and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using Valeant shall use their reasonable best efforts to cooperate with Parent to satisfy obtain alternative financing from alternative sources as promptly as reasonably practicable following the conditions precedent occurrence of such event. Biovail shall give Valeant prompt notice of any material breach by any party to the Debt Financing that are within the control Commitment Letter of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect which Biovail becomes aware. Valeant shall give Biovail prompt notice of any material breach by any party to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x) obtain payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action that would be effective prior to the Closing (other than as expressly set forth in this Section 6.17) or, in the good faith judgment of the Company or any of its Subsidiaries, interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability in connection with the Debt Financing or provide or agree to provide any indemnity in connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required to take any corporate actions prior to the Closing to permit the consummation of the Debt Financing (except for any corporate actions that are conditioned upon the Closing), and (vi) no Representative of the Company or any of its Subsidiaries shall be required to make any certifications that it does not reasonably in good faith believe to be true. In addition, the Company shall furnish Parent reasonably promptly (and, in any event, prior to the Closing) with the financial statements identified in paragraphs 6 and 7 of Exhibit C of the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)Valeant becomes aware.
Appears in 1 contract
Financing. (a) Prior to the ClosingEffective Time, the Company shall use reasonable best effortsprovide, and shall cause its Subsidiaries to use reasonable best efforts, provide and shall use its reasonable best efforts to cause their its and their Subsidiaries’ respective Representatives, in each case, with appropriate seniority Representatives (including legal and expertise in the good faith judgement of the Company, at Parent’s sole cost and expense, accounting) to provide to Parent all such reasonable cooperation reasonably requested by Parent, in connection with arranging, syndicating, consummating and obtaining the Debt Financing under and in accordance with the terms arrangement of the Debt Financing Commitment Letter and/or arranging, syndicating, consummating and obtaining any Alternative Debt Financing (collectively, the “Debt Financing”), including: (i) assisting as may be reasonably requested in the preparation of a confidential information memorandum and other customary marketing materials to be used writing by Parent with reasonable notice in connection with the marketing obtaining of the Debt Financing and ratings agency presentations and delivering customary representation and authorization letters Financing, including using reasonable best efforts to (i) participate in connection therewith; (ii) upon reasonable prior notice and at times to be reasonably agreedmeetings, participation of representatives of senior management of the Company (which participation may be by videoconference) in a reasonable number of presentations, due diligence sessions, drafting sessions, road shows and sessions and with rating agencies, (ii) assist with the preparation of materials for rating agency meetingspresentations, as well as a reasonable number of meetings with Debt Financing Sources; (iii) providing customary information and assistance reasonably necessary to assist Parent and its counsel with obtaining the customary legal opinions offering memoranda, private placement memoranda or similar offering documents required to be delivered in connection with the Debt Financing; , (iii) reasonably facilitate the pledging of collateral, in each case so long as not effective until at or after the Effective Time, (iv) permitting officers furnish Parent and its Financing sources with (A) readily available historical financial and other pertinent information that, as of any date, would be required to be contained in filings by the Company with the SEC on Forms 10 Q and 10 K as of such date, in each case as may be reasonably requested by Parent (collectively, the “Required Financial Information”), and (B) any other historical financial statements and other financial data of the Company or any type reasonably requested by Parent, (v) permit the prospective lenders involved in the Debt Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of its Subsidiaries who will be officers establishing collateral arrangements, (vi) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, and (vii) take corporate actions reasonably necessary to permit the consummation of the Debt Financing and to permit the proceeds thereof to be made available to the Company. The Company shall use commercially reasonable efforts to (1) provide monthly financial statements (excluding footnotes) within 25 days of the end of each month prior to the Closing Date, if and in the form currently prepared by the Company, (2) obtain accountants’ comfort letters, legal opinions, surveys and title insurance as may be requested by Parent or the prospective lenders in the Debt Financing, (3) cause its officers, in their capacities as officers, to deliver such customary management representation letters as any of its Subsidiaries after Closing to execute and deliver audit firm may request in connection with any documentation comfort letters or similar documents required in connection with the Debt Financing (subject to subclause (iv) of the proviso below) including any customary closing officer’s certificates and secretary’s certificates prepared by Parent (including certification of organizational authorization, organizational documents and good standing certificates) of the Company and its Subsidiaries, and taking corporate action to authorize the borrowing and guarantees of the Debt Financing, provided that any of the foregoing shall not require the adoption of any corporate resolutions or actions prior to the Closing Date; (v) furnishing a certificate of a financial officer of the Company with respect to solvency matters in a customary form required to consummate the Debt Financing as of the Closing Date; (vi) furnishing Parent promptly (and in any event at least five Business Days prior to the Closing Date) with all documentation and other information with respect to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and in each case, requested by the Debt Financing Sources in writing at least ten Business Days prior to the Closing Date; (vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing that are within the control of the Company or its Subsidiaries; (viii) providing such other reasonably available financial and other information with respect to the Company and its business as Parent or its Debt Financing Sources may reasonably request in connection with the Debt Financing (provided that in no event shall the Company, its Subsidiaries, and their respective Representatives be required to provide any pro forma financial information or statements), (ix) assisting in the preparation of customary definitive financing documentation and the completion of any schedules, exhibits or annexes thereto (including a customary perfection certificate) and (x4) obtain payoff lettersthe issuance or reissuance of required state, Lien terminations and instruments of discharge to be delivered at Closing to allow county or city licenses or permits required for the payoff, discharge and termination in full on operation after the Closing Date of all then outstanding Indebtedness and any Liens securing such Indebtedness that the Debt Financing Commitment Letter requires to be paid off, discharged or terminated on the Closing Date; provided, however, that notwithstanding the foregoing, (i) nothing herein shall require the Company, its Subsidiaries or any of their respective Representatives to take any action ’s business and (5) obtain estoppel certificates from landlords under Real Property Leases and from tenants under Real Property Subleases. It is understood and agreed that would be effective prior to the Closing (other than as expressly set forth nothing contained in this Section 6.17) or, in 6.09 shall require such cooperation to the good faith judgment of the Company or any of its Subsidiaries, extent that it would interfere unreasonably with the business or operations of any of the Company, jeopardize the health and safety of any employee of the Company or any of its Subsidiaries in light of COVID-19 or any COVID-19 Measures, cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Parent or Merger Sub, cause any director, officer or employee of the Company or its Subsidiaries Subsidiaries. The Company hereby consents to incur any liability or cause any breach of any Applicable Law, (ii) the Company shall not be required to disclose any information to Parent or any use of its Affiliates or any prospective lender or any their respective representatives if doing so would result in the waiver of any legal privilege or work product protection of any of the Company or and its Affiliates, directors, officers or employees, (iii) neither the Company nor its Affiliates, directors, officers, employees, agents and Representatives shall be required to pay any commitment or other fee or make any other payment (other than fees and costs which are reimbursed by Parent in accordance with this Section 6.17) or incur any other liability Subsidiaries’ Trademarks in connection with the Debt Financing Financing, provided that such Trademarks are used solely in a manner that is not intended to nor reasonably likely to harm or provide disparage the Company or agree to provide any indemnity in connection with any Debt Financing the reputation or any goodwill of the foregoing that would be effective prior to the Closing, (iv) the Company shall not be required to execute prior to the Closing any definitive financing documents (other than customary representation and authorization letters), including any other certificates or documents in connection with the Debt Financing, except for any execution of documents that are conditioned upon the Closing, (v) neither its Trademarks. Neither the Company nor any of its Subsidiaries (nor their respective governing bodies) shall be required required, under the provisions of this Section 6.09 or otherwise in connection with the Financing (x) to take pay any corporate actions commitment or other similar fee prior to the Closing Effective Time that is not advanced by Parent or (y) to permit incur any out-of-pocket expense unless such expense is advanced by Parent. Parent and Sub shall, on a joint and several basis, indemnify and hold harmless the consummation Company, its Subsidiaries and their respective Representatives from and against any and all losses suffered or incurred by them in connection with (1) any action taken by them in compliance with this Section 6.09, or at the request of Parent pursuant to this Section 6.09, or otherwise in connection with the arrangement of the Debt Financing or (except for 2) any corporate actions that are conditioned upon information utilized in connection therewith (other than the Closing), and (vi) no Representative of information provided by the Company or any of its Subsidiaries Subsidiaries). Nothing contained in this Section 6.09 or otherwise shall be required to make any certifications that it does not reasonably in good faith believe require the Company to be true. In addition, an issuer or other obligor with respect to the Company shall furnish Parent reasonably promptly (and, in any event, Financing prior to the Closing) Effective Time. All material, non-public information regarding the Company and its Subsidiaries provided to Parent or its Representatives pursuant to this Section 6.09 shall be kept confidential by them in accordance with the financial statements identified Confidentiality Agreement except for disclosure to potential investors as required in paragraphs 6 and 7 of Exhibit C of connection with the Debt Financing Commitment Letter (or the analogous provision in any commitment letter for any Alternative Debt Financing (provided that the conditions set forth in such analogous provision shall be not more burdensome subject to the Company in any respect than those contained in the Debt Financing Commitment Letter as in effect on the date of this Agreement)customary confidentiality protection.
Appears in 1 contract
