Common use of Certain Cooperation Clause in Contracts

Certain Cooperation. (a) From the date hereof until the Closing, the Company shall use commercially reasonable efforts and shall cause the Company’s and its Subsidiaries’ employees, advisors and other Representatives to use commercially reasonable efforts (at Parent’s sole cost and expense) to, as promptly as practicable in the context of deadlines communicated reasonably in advance to the Company by the Parent: (i) reasonably cooperate with Parent’s preparation of pro forma financial information that may be required in connection with any securities offering transaction of Parent or any of its affiliates (any such transaction, a “Financing”), in each case, to the extent required by the SEC or similar securities regulatory body as a result of the Transactions; (ii) cause the Company’s independent accountants to provide consent to use of their audit reports in materials relating to such transaction, including SEC filings or offering prospectuses that include or incorporate Parent’s or its affiliates’ consolidated financial information and their reports thereon in accordance with normal customary practice; (iii) cause the Company’s independent accountants to prepare and deliver customary “comfort letters,” in connection with any such transaction by Parent or any of its affiliates, subject to and in compliance with professional standards; (iv) reasonably cooperate with Parent’s and its Representatives’ preparation of any prospectus, or roadshow materials, or other materials to be used in “testing-the-waters”, pre-marketing or marketing processes, any listing applications to the applicable US stock exchange, any agreements or arrangements with initial purchasers, underwriters, placing agents or investors, any agreements that establish the terms of any securities to be offered or sold, as well as any other offering/listing materials; provided that any such materials shall include customary language which shall exculpate Parent, its affiliates and respective Representatives with respect to any liability related to or responsibility for the contents of such information or related offering/listing and marketing materials by the recipients thereof; and (v) to otherwise assist and cooperate with Parent’s and its Representatives’ preparation of any applicable SEC filings or offering prospectuses and in its implementation of any listing on an applicable US stock exchange. (b) Notwithstanding anything herein to the contrary, nothing in this Section 5.17 will require any such cooperation or action to the extent that it would (i) require the Company or its Subsidiaries or any of their respective Representatives to pay (or agree to pay) any fee, provide any indemnities or incur any liability or other obligation or enter into any Contract, (ii) impose any personal liability on the officers, directors, managers, employees, advisors, accountants, consultants, auditors, agents or other Representatives of the Company or its Subsidiaries, (iii) unreasonably interfere with the operation of the business of the Company or its Subsidiaries, (iv) cause any representation or warranty in this Agreement to be breached by the Company or its Subsidiaries or require any waiver or amendment of the terms of this Agreement or any Company Material Contract to which the Company or its Subsidiaries is a party, (v) conflict with the organizational documents of the Company or its Subsidiaries or any Law, (vi) result in the contravention of, or that could result in a violation or breach of, or a default (with or without notice, lapse of time, or both) under, any Company Material Contract to which the Company or its Subsidiaries is party or by which it is bound, (vii) provide access to or disclose information that the Company or its Subsidiaries reasonably determines would jeopardize any attorney-client or similar privilege of the Company or such Subsidiaries and (viii) require the Company or its Subsidiaries to provide or prepare any projections or pro forma financial statements. Notwithstanding anything herein to the contrary, the failure of the Company to comply with this Section 5.17 shall not give rise to the failure of a condition precedent set forth in Section 6.3 or termination right pursuant to Section 7.1. (c) Parent shall indemnify and hold harmless the Company, each of its Subsidiaries and their respective Representatives and affiliates from and against all losses suffered or incurred by any of them in connection with the obligations under this Section 5.17, any Financing and any other financing that Parent may raise in connection with the transactions contemplated hereby, or any information used in connection with any of the foregoing. Parent shall promptly, upon request by the Company, reimburse the Company for all out-of-pocket costs and expenses (including outside attorneys’ fees and disbursements) incurred by the Company, any of its Subsidiaries or any of their respective Representatives and affiliates in connection with the cooperation contemplated by this Section 5.17. (d) All non-public or other confidential information provided by or behalf of the Company to Parent or its affiliates or any of their respective Representatives pursuant to this Section 5.17 shall be kept confidential in accordance with the terms of the Confidentiality Agreement.

Certain Cooperation. (a) From the date hereof until the Closing, the The Company and its Subsidiaries shall use commercially reasonable efforts and shall cause the Company’s and its Subsidiaries’ employeesto cooperate with Parent, advisors and other Representatives to use commercially reasonable efforts (at Parent’s request and sole cost and expense) , to, as promptly as practicable in the context of deadlines communicated reasonably in advance with respect to the Disposition Properties (as defined on Section 5.1 of the Company by Disclosure Letter), but that are not actually sold before the Parent: Closing, (ia) reasonably cooperate with Parent’s preparation of pro forma financial information that may be required in connection with any securities offering transaction of Parent sell such properties, or any of its affiliates (any sell a Company Subsidiary directly or indirectly holding such transaction, a “Financing”)property, in each case, subject to any purchase and sale contract entered into with respect to the extent required by the SEC or similar securities regulatory body as a result of the Transactions; (ii) cause the Company’s independent accountants to provide consent to use of their audit reports in materials relating to such transaction, including SEC filings or offering prospectuses that include or incorporate Parent’s or its affiliates’ consolidated financial information and their reports thereon applicable Disposition Properties in accordance with normal customary practice; the terms and provisions of this Agreement, to Parent or an Affiliate of Parent immediately prior to the Closing pursuant to documentation reasonably satisfactory to Parent and the Company or (iiib) subject to the next sentence of this Section 6.18, cause a Company Subsidiary directly or indirectly holding such property to elect to be classified as a corporation for U.S. federal income tax purposes effective as of the Company’s independent accountants to prepare and deliver customary “comfort letters,” in day before the Closing Date. In connection with any such transaction by election pursuant to clause (b), the Company shall prepare a properly completed IRS Form 8832 electing for such Subsidiary to be classified as a corporation for U.S. federal income tax purposes effective as of the day before the Closing Date, shall deliver a draft of such election to Parent or any of its affiliatesat least five (5) Business Days before the Closing, subject to and shall revise such draft IRS Form 8832 in compliance with professional standards; (iv) reasonably cooperate accordance with Parent’s reasonable comments, and on or prior to the Closing Date, the Company shall provide to Parent such IRS Form 8832, properly executed, which Parent shall properly file with the United States Internal Revenue Service no earlier than the Closing. The Company and its Representatives’ preparation of any prospectus, or roadshow materials, or other materials Subsidiaries shall be required to be used in “testing-the-waters”, pre-marketing or marketing processes, any listing applications use such commercially reasonable efforts to cooperate with Parent and to perform the actions contemplated by this Section 6.18 solely to the applicable US stock exchangeextent and only so long as (i) any such actions do not have an adverse effect on the Company or any Company Subsidiary, including any agreements or arrangements adverse effect on the consummation of the Mergers in accordance with initial purchasers, underwriters, placing agents or investors, any agreements that establish the terms of any securities to be offered or soldthis Agreement, as well as any other offering/listing materials; provided that any (ii) such materials shall include customary language which shall exculpate Parent, its affiliates and respective Representatives with respect to any liability related to or responsibility for the contents of such information or related offering/listing and marketing materials by the recipients thereof; and (v) to otherwise assist and cooperate with Parent’s and its Representatives’ preparation of any applicable SEC filings or offering prospectuses and in its implementation of any listing on an applicable US stock exchange. (b) Notwithstanding anything herein to the contrary, nothing in this Section 5.17 will require any such cooperation or action to the extent that it actions would (i) require not cause the Company or its Subsidiaries or any of their respective Representatives to pay (or agree to pay) any fee, provide any indemnities or incur any liability or other obligation or enter into any Contract, (ii) impose any personal liability on the officers, directors, managers, employees, advisors, accountants, consultants, auditors, agents or other Representatives equityholders of the Company or its Subsidiariesthe Company Operating Partnership immediately prior to the Closing to be subject to additional Taxes (other than the Taxes that would be imposed on such party in connection with the consummation of this Agreement in the absence of such action taken pursuant to this Section 6.18) that are not indemnified by Parent, (iii) unreasonably interfere with the operation such actions are not in contravention of the business (A) any Joint Venture Agreement or any organizational document of the Company or its Subsidiariessuch Company Subsidiary, (ivB) cause any representation or warranty in this Agreement to be breached by the Company or its Subsidiaries or require any waiver or amendment of the terms provision of this Agreement or Agreement, (C) any Company Material Contract to which the Company or its Subsidiaries such Subsidiary is a party, or (D) applicable Law, (iii) such actions (or the inability to complete such actions) shall not affect or modify in any respect the obligations of the Parent Parties under this Agreement, including the amount of or timing of payment of the Merger Consideration, the Preferred Merger Consideration, the OP Merger Consideration or any other amounts required to be paid pursuant to Article II, (iv) neither the Company nor any Company Subsidiary shall be required to take any such action that could adversely affect the classification of the Company as a REIT, and (v) conflict except as agreed by Parent and the Company, any such changes, and any actions or transactions related thereto, shall be implemented and effective immediately prior to or concurrent with the organizational documents Closing or otherwise contingent upon, the Closing. Without limiting the foregoing, none of the representations, warranties or covenants of the Company or its Subsidiaries or any Law, (vi) result in the contravention of, or that could result in a violation or breach of, or a default (with or without notice, lapse of time, or both) under, any Company Material Contract to which the Company or its Subsidiaries is party or by which it is bound, (vii) provide access to or disclose information that the Company or its Subsidiaries reasonably determines would jeopardize any attorney-client or similar privilege of the Company or such Subsidiaries and (viii) require the Company or its Subsidiaries to provide or prepare any projections or pro forma financial statements. Notwithstanding anything herein to the contrary, the failure of the Company to comply with this Section 5.17 shall not give rise to the failure of a condition precedent set forth in Section 6.3 or termination right pursuant to Section 7.1. (c) Parent shall indemnify and hold harmless the Company, each of its Subsidiaries and their respective Representatives and affiliates from and against all losses suffered or incurred by any of them in connection with the obligations under this Section 5.17, any Financing and any other financing that Parent may raise in connection with the transactions contemplated hereby, or any information used in connection with any of the foregoing. Parent shall promptly, upon request by the Company, reimburse the Company for all out-of-pocket costs and expenses (including outside attorneys’ fees and disbursements) incurred by the Company, any of its Subsidiaries shall be deemed to apply to, or any of their respective Representatives and affiliates in connection with be deemed to be breached or violated by, the actions or cooperation contemplated by this Section 5.17. (d6.18. The reimbursement and indemnification provisions of Section 6.15(g) All non-public or other confidential information provided by or behalf shall apply to the actions of the Company to Parent or its affiliates or any of their respective Representatives and Company Subsidiaries pursuant to this Section 5.17 shall be kept confidential in accordance with the terms of the Confidentiality Agreementprovision.