Cooperation with Debt Financing. (a) Prior to the Effective Time, each of the Acquired Companies shall use its reasonable best efforts to, and shall use reasonable best efforts to cause its respective officers, employees and other representatives with appropriate seniority and expertise to, provide cooperation reasonably requested by ▇▇▇▇▇▇ and Merger Sub, at Parent’s sole cost and expense, in connection with any debt financing arrangements of Parent or Merger Sub in connection with the transactions contemplated by this Agreement (the “Debt Financing”), including its reasonable efforts to provide the following assistance: (i) participating (and causing senior management and representatives, with appropriate seniority and expertise, of the Acquired Companies to participate) in a reasonable number of meetings, presentations, due diligence sessions, drafting sessions and sessions with the Debt Financing Sources and prospective lenders and otherwise reasonably cooperating with the marketing and due diligence efforts for any of the Debt Financing, (ii) providing reasonable assistance to Parent, Merger Sub and the Debt Financing Sources with the timely preparation of customary (A) rating agency presentations, bank information memoranda, confidential information memoranda, lender presentations and similar documents required in connection with or proper for the Debt Financing or customarily used to arrange transactions similar to the Debt Financing by companies of a comparable size in a comparable industry as the Company; and (B) pro forma financial statements and forecasts of financial statements of the Acquired Companies for one or more periods following the Closing Date, in each case based on financial information and data derived from the Acquired Company’s historical books and records, provided, however, that no member of the Acquired Companies will be required to provide any information or assistance with respect to the preparation of pro forma financial statements and forecasts of financing statements, including relating to the determination of the proposed aggregate amount of the Debt Financing, the interest rates thereunder or the fees and expenses relating thereto, or the determination of any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing; (iii) furnishing Parent, Merger Sub and the Debt Financing Sources as promptly as practicable with financial and other pertinent information regarding the Acquired Companies that is reasonably available to the Company as may be reasonably requested by Parent or the Debt Financing Sources to the extent that such information is of the type and form customarily included in a bank confidential information memorandum in connection with the arrangement of financing similar to the Debt Financing or in rating agency presentations, lender presentations or other customary marketing materials, (iv) providing customary authorization letters, confirmations and undertakings to the Debt Financing Sources authorizing the distribution of information to prospective lenders and containing a representation to the Debt Financing Sources that the information pertaining to the Acquired Companies contained in the disclosure and marketing materials related to the Debt Financing (other than forecasts and similar prospective information) is complete and correct in all material respected and that the public side versions of such documents, if any, do not include material non-public information about the Company or its Subsidiaries or securities, (v) (A) assisting with the preparation and negotiation of definitive financing documentation and the schedules and exhibits thereto (including loan agreements, guarantees, collateral agreements, hedging arrangements, and customary officer’s and other closing certificates (including a solvency certificate)) as may reasonably be requested, (B) facilitating the granting of a security interest in and pledging of collateral, it being understood that such documents will not take effect until the Closing Date, and (C) cooperating in satisfying the conditions precedent set forth in any definitive agreements relating to the Debt Financing to the extent the satisfaction thereof requires the cooperation or is in the control of the Acquired Companies, (vi) promptly furnishing Parent, Merger Sub and the Debt Financing Sources with all documentation and other information reasonably requested by any Debt Financing Source with respect to “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, in each case, at least three Business Days prior to the Closing Date that has been reasonably requested by Parent in writing, at least ten days prior to the Closing Date, and (vii) taking corporate actions, subject to the occurrence of the Closing, necessary to permit the consummation of the Debt Financing. (b) Nothing in this Section 6.20 will require the Acquired Companies to (i) waive or amend any terms of this Agreement, pay any commitment fee or similar fee or agree to pay any other fees or reimburse any expenses or otherwise issue or provide any indemnities prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent; (ii) enter into, approve, modify or perform any definitive agreement or commitment or distribute any cash (except to the extent subject to concurrent reimbursement by Parent) that will be effective prior to the Closing Date; (iii) incur any liability or give any indemnities in connection with the Debt Financing that are effective prior to the Effective Time; (iv) take any action that, in the good faith determination of the Company, would unreasonably interfere with the conduct of the business of the Acquired Companies; (v) provide any information that is not reasonably available to the Company, (vi) prepare separate financial statements for any of the Acquired Companies to the extent not customarily prepared by the Acquired Companies and to the extent such preparation would be unduly burdensome or change any fiscal period; (vii) adopt any resolutions, execute any consents or otherwise take any corporate or similar action that will be effective prior to the Closing; or (viii) provide any legal opinion. In addition, no action, liability or obligation of the Acquired Companies or any of its Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to the Debt Financing (other than customary authorization letters (including with respect to the presence or absence of material non-public information and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing, in each case based on financial information and data derived from the Company’s historical books and records)) will be effective until the Effective Time, and the Acquired Companies will not be required to take any action pursuant to any certificate, agreement, arrangement, document or instrument (other than customary authorization letters) that is not contingent on the occurrence of the Closing or that must be effective prior to the Effective Time. Nothing in this Section 6.20 will require (1) any officer, employee or Representative of the Acquired Companies to deliver any certificate or opinion or take any other action under this Section 6.20 that would reasonably be expected to result in personal liability to such officer or Representative. (c) The Company hereby consents to the reasonable use of the Acquired Companies’ logos in connection with the Debt Financing, provided that such logos are used in a manner that is not intended to or reasonably likely to harm or disparage any of the Acquired Companies or the reputation or goodwill of any Acquired Company or are used in any other manner as approved by the Acquired Companies in their reasonable discretion. (d) Promptly upon request by the Company, Parent will reimburse the Company for any reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Acquired Companies in connection with the cooperation of the Acquired Companies contemplated by Section 6.20(a). Parent shall indemnify and hold harmless the Acquired Companies and its Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments, penalties and amounts paid in settlement suffered or incurred by them in connection with any cooperation provided pursuant to this Section 6.20 or the provision of information utilized in connection therewith, except to the extent that any of the foregoing results from gross negligence, bad faith, willful misconduct or a material misstatement of the Company or its Affiliates. Parent’s obligations pursuant to the two preceding sentences are referred to collectively as the “Reimbursement Obligations”. Notwithstanding the foregoing, for the avoidance of doubt, the costs and expenses subject to the Reimbursement Obligations shall not include (x) costs and expenses incurred in connection with the preparation of financial statements that are or would be prepared in the ordinary course of business irrespective of this Agreement, (y) any ordinary course amounts payable to employees of the Company or its Affiliates with respect to services provided prior to the Closing Date and (z) any other ordinary course amounts that would have been incurred in connection with the transactions contemplated hereby regardless of any debt financing established in connection herewith and regardless of the covenants set forth in this Section 6.20(d).
Appears in 1 contract
Sources: Merger Agreement (Model N, Inc.)
Cooperation with Debt Financing. (a) Prior to the Effective TimeClosing Date, each of the Acquired Companies Company shall use its reasonable best efforts to, and shall cause its Subsidiaries to and use its reasonable best efforts to cause its and their respective officers, employees and other representatives with appropriate seniority and expertise Representatives to, use reasonable best efforts to provide cooperation reasonably requested by ▇▇▇▇▇▇ to Parent and Merger Sub, in each case at Parent’s sole cost and expense, in connection with any debt financing arrangements of such necessary, advisable or customary cooperation as is reasonably requested by Parent or Merger Sub in connection with the transactions contemplated by this Agreement (arrangement of the “Debt Financing”), including its reasonable efforts to provide the following assistance: including:
(i) participating (and causing senior management and representatives, with appropriate seniority and expertise, of the Acquired Companies Company to participate) assist in preparation for, and participation in, a reasonable number of investor and lender meetings, presentations, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Debt Financing Sources at reasonable times and prospective lenders locations mutually agreed (such agreement not to be unreasonably withheld, conditioned or delayed), and otherwise reasonably cooperating assisting Parent in obtaining ratings in connection with the marketing and due diligence efforts for any of the Debt Financing, ;
(ii) (A) providing reasonable assistance to Parent, Merger Sub with the preparation by ▇▇▇▇▇▇ and the Debt Financing Sources with the timely preparation of customary (A) materials for rating agency presentations, bank information memoranda, confidential information memoranda syndication memoranda, lender presentations and similar other customary marketing documents required in connection with or proper for the Debt Financing or customarily used to arrange transactions similar to the Debt Financing by companies of a comparable size in a comparable industry as the Company; and (B) providing customary authorization letters with respect to the Company authorizing the distribution of information to prospective lenders and investors (including customary 10b-5 and material non-public information representations);
(iii) cooperating reasonably with the Debt Financing Sources’ due diligence (including reasonable access to the premises of the Company and its Subsidiaries), to the extent customary and reasonably requested;
(iv) assisting Parent in connection with Parent’s preparation of pro forma financial statements and forecasts of financial statements of the Acquired Companies for one or more periods following the Closing Date, in each case based on financial information Company and data derived from the Acquired Company’s historical books and records, provided, however, that no member its Subsidiaries of the Acquired Companies will type necessary or reasonably requested by the Debt Financing Sources to be included in any bank information memoranda or other customary marketing materials, including by providing such financial and other pertinent information regarding the Company and its Subsidiaries and their respective businesses; provided that neither the Company nor any of its Subsidiaries or Representatives shall be required to provide any information or assistance with respect relating to (A) the preparation of proposed debt and equity capitalization that is required for such pro forma financial statements and forecasts of financing statements, including relating to the determination of the proposed aggregate amount of the Debt Financing, the information or assumed interest rates thereunder or the and fees and expenses relating theretoto such debt and equity capitalization, or the determination of (B) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing; Financing or (iiiC) furnishing Parent, Merger Sub and the Debt Financing Sources as promptly as practicable with financial and other pertinent any information regarding the Acquired Companies related to Parent or any of its Subsidiaries or any adjustments that is reasonably available are not directly related to the Company as may be reasonably requested by Parent or the Debt Financing Sources to the extent that such information is acquisition of the type Company;
(A) assisting in the preparation, execution and form customarily included in a bank confidential information memorandum delivery of definitive financing documents in connection with the arrangement of financing similar to the Debt Financing or in rating agency presentations, lender presentations or other customary marketing materials, (iv) providing customary authorization letters, confirmations and undertakings to the Debt Financing Sources authorizing the distribution of information to prospective lenders and containing a representation to the Debt Financing Sources that the information pertaining to the Acquired Companies contained in the disclosure and marketing materials related to the Debt Financing (other than forecasts and similar prospective information) is complete and correct in all material respected and that the public side versions of such documents, if any, do not include material non-public information about the Company or its Subsidiaries or securities, (v) (A) assisting with the preparation and negotiation of definitive financing documentation and the schedules and exhibits thereto (including loan agreements, guarantees, collateral agreements, hedging arrangements, and customary officer’s and other closing certificates (including a solvency certificate)) as may reasonably be requested, (B) facilitating the granting pledge of, grant of a security interest interests in and pledging obtain perfection of collateralany liens on collateral in connection with the Debt Financing; provided that, it being understood that such except in the case of customary authorization letters as contemplated by Section 6.6(a)(ii), (I) none of the documents will not take effect until or certificates shall be executed and/or delivered except in connection with the Closing, (II) the effectiveness thereof shall be conditioned upon, or become operative as of or after, the occurrence of the Closing Date, and (C) cooperating in satisfying no liability shall be imposed on the conditions precedent set forth in Company or any definitive agreements relating of its Subsidiaries or any of their respective officers or employees involved prior to the Debt Financing to the extent the satisfaction thereof requires the cooperation or is in the control of the Acquired Companies, Closing Date;
(vi) promptly furnishing Parent, Merger Sub and the Debt Financing Sources with providing all documentation and other information about the Company and its Subsidiaries as is reasonably requested by any Debt Financing Source with respect to under applicable “know your customer” and anti-money laundering rules and regulations, regulations including the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law on October 26, 2001) and the Customer Due Diligence Requirements for Financial Institutions issued by the U.S. Department of Treasury Financial Crimes Enforcement Network under the Bank Secrecy Act;
(vii) assist Parent in obtaining waivers, consents, estoppels and approvals from other parties to material leases, Liens and agreements relating to the Company and its Subsidiaries, in each case, at least three Business Days prior to the Closing Date that has been case as reasonably requested by Parent in writing, at least ten days prior to or the Closing Date, and Debt Financing Sources; and
(viiviii) taking corporate actionsall corporate, subject to the occurrence of the Closinglimited liability company, necessary partnership or other similar actions reasonably requested by Parent or any Debt Financing Sources to permit the consummation of the Debt Financing.
(b) Nothing in this Section 6.20 will require the Acquired Companies ; provided that no such actions shall be required to (i) waive or amend any terms of this Agreement, pay any commitment fee or similar fee or agree to pay any other fees or reimburse any expenses or otherwise issue or provide any indemnities prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent; (ii) enter into, approve, modify or perform any definitive agreement or commitment or distribute any cash (except to the extent subject to concurrent reimbursement by Parent) that will be effective prior to the Closing Date; (iii) incur any liability or give any indemnities in connection with the Debt Financing that are effective prior to the Effective Time; (iv) take any action that, in the good faith determination of the Company, would unreasonably interfere with the conduct of the business of the Acquired Companies; (v) provide any information that is not reasonably available to the Company, (vi) prepare separate financial statements for any of the Acquired Companies to the extent not customarily prepared by the Acquired Companies and to the extent such preparation would be unduly burdensome or change any fiscal period; (vii) adopt any resolutions, execute any consents or otherwise take any corporate or similar action that will be effective prior to the Closing; or provided, that:
(viiiA) provide any legal opinion. In addition, in no action, liability or obligation of event shall the Acquired Companies Company or any of its Subsidiaries be required to provide any such cooperation or access to premises to the extent it interferes unreasonably with the ongoing operations of the Company and its Subsidiaries;
(B) no obligation of the Company or any of its Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to on account of the Debt Financing (other than customary authorization letters (including with respect to or the presence or absence of material non-public information and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing, in each case based on financial information and data derived from the Company’s historical books and records)) will Sale/Leaseback Transaction shall be effective until the Effective TimeClosing Date (excluding in connection with any authorization letters referred to in clause (iii) above);
(C) in no event shall the Company or any of its Subsidiaries be required to pay any commitment or other fee, enter into any definitive agreement (excluding in connection with any authorization letters referred to in clause (iii) above) or agree to provide any indemnity (that is not being indemnified pursuant to the Reimbursement Obligations) in connection with the Financing that is effective, prior to the Closing Date;
(D) nothing in this Section 6.6 shall require any action that would conflict with or violate the Company’s or any of its Subsidiaries’ organizational documents or any applicable Laws or result in, prior to the Closing Date, the contravention of any Material Contract to which the Company or its Subsidiaries is a party;
(E) neither the Company or its Subsidiaries nor any Persons who is a director, officer or employee of the Company or its Subsidiaries shall be required to (x) pass resolutions or consents (except those which are subject to the occurrence of the Closing passed by directors or officers continuing in their positions following the Closing) or (y) execute any document (excluding the authorization letter referred to in clause (iii) above) or Contract prior to the occurrence of the Closing in connection with the Debt Financing or the Sale/Leaseback Transaction;
(F) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to disclose or provide any information in connection with the Financing, the disclosure of which, in the judgement of the Company, is subject to attorney-client privilege or could result in the disclosure of any trade secrets or the violation of any confidentiality obligation; provided that the Company or such Subsidiary shall use reasonable best efforts to provide an alternative means of disclosing or providing such information, and in the Acquired Companies will not case of any confidentiality obligation, Company shall, to the extent permitted by such confidentiality obligations, notify Parent if any such information that Parent, Merger Sub or any Debt Financing Source or the Third Party Purchaser has specifically identified and requested is being withheld as a result of any such obligation of confidentiality;
(G) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to deliver any legal opinion in connection with the Debt Financing or the Sale/Leaseback Transaction;
(H) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to take any action pursuant that would cause the Company or any of its Subsidiaries to breach any certificaterepresentation, agreementwarranty, arrangement, document covenant or instrument agreement in this Agreement; and
(other than customary authorization lettersI) that is not contingent on the occurrence none of the Closing Company or that must its Subsidiaries or any of their respective Representatives shall be effective prior required to the Effective Time. Nothing in this Section 6.20 will require (1) any officer, employee or Representative of the Acquired Companies to deliver any certificate or opinion or take any other action under this Section 6.20 that would reasonably be expected to result in personal liability to such cause any director, officer or Representativeemployee or stockholder of the Company or any of its Subsidiaries to incur personal liability. Parent shall, in the event the Closing shall not occur, (x) promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including (A) reasonable and documented attorneys’ fees and (B) reasonable and documented fees and expenses of the Company’s accounting firms engaged to assist in connection with the Financing, including performing additional requested procedures, reviewing any offering documents, participating in any meetings and providing any comfort letters) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries and Representatives contemplated by this Section 6.6(a) or by Section 6.24 (it being understood that the reimbursement set forth in this paragraph shall not apply to any fees, costs and expenses incurred by, or on behalf of, the Company in connection with its ordinary course financial reporting requirements); and (y) indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the arrangement of the Financing (including the performance of their respective obligations under this Section 6.6 or by Section 6.24) and any information used in connection therewith, in each case other than to the extent any of the foregoing was suffered or incurred as a result of (I) fraud, bad faith, gross negligence or willful misconduct or (II) information provided by or on behalf of the Company, any of its Subsidiaries or any of their respective Representatives (collectively, the “Reimbursement Obligations”).
(cb) The Company hereby consents to the reasonable use of the Acquired Companies’ its logos solely in connection with the Debt Financing, ; provided that Parent and Merger Sub shall ensure that such logos are used solely (i) in a manner that is not intended to or reasonably likely to harm or disparage any the Company or the Company’s reputation or goodwill, (ii) in connection with a description of the Acquired Companies Company, its business and products or the reputation or goodwill of any Acquired Company or are used Merger and (iii) in any other a manner as approved by that will comply with the Acquired Companies in their reasonable discretionCompany’s usage requirements to the extent made available to Parent prior to the Agreement Date.
(dc) Promptly upon request by Parent and Merger Sub acknowledge and agree that (i) the Companyobtaining of the Financing, Parent or any Alternative Debt Financing, is not a condition to Closing and (ii) a material breach of this Section 6.6 will reimburse only constitute a material breach of the Company for purposes of Section 7.2 if (x) Parent has provided the Company with notice in writing of such breach (with reasonable specificity as to the basis for any reasonable such breach) and documented out-of-pocket costs and expenses the Company has failed to cure such breach (including reasonable and documented attorneys’ fees) incurred by the Acquired Companies in connection with the cooperation of the Acquired Companies contemplated by Section 6.20(a). Parent shall indemnify and hold harmless the Acquired Companies and its Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments, penalties and amounts paid in settlement suffered or incurred by them in connection with any cooperation provided pursuant to this Section 6.20 or the provision of information utilized in connection therewith, except to the extent that any of the foregoing results from gross negligence, bad faith, willful misconduct or a material misstatement of the Company or its Affiliates. Parent’s obligations pursuant to the two preceding sentences are referred to collectively as the “Reimbursement Obligations”. Notwithstanding the foregoing, for the avoidance of doubt, the costs such breach can be cured) within ten (10) days following such notice and expenses subject to the Reimbursement Obligations shall not include (x) costs and expenses incurred in connection with the preparation of financial statements that are or would be prepared in the ordinary course of business irrespective of this Agreement, (y) any ordinary course amounts payable to employees such breach is a proximate and substantial cause of the Company or its Affiliates with respect to services provided prior to the Closing Date and (z) any other ordinary course amounts that would have been incurred in connection with the transactions contemplated hereby regardless of any debt financing established in connection herewith and regardless of the covenants set forth in this Section 6.20(d)Debt Financing not being consummated.
Appears in 1 contract
Cooperation with Debt Financing. (a) Prior to the Effective Time, each of the Acquired Companies shall Company will use its commercially reasonable best efforts to, and shall will use its commercially reasonable best efforts to cause each of its Subsidiaries and its and their respective officers, employees and other representatives with appropriate seniority and expertise Representatives to, do the following:
(i) provide Parent with such commercially reasonable cooperation as may be reasonably requested by ▇▇▇▇▇▇ and Merger Sub, at Parent’s sole cost and expense, Parent to assist the Buyer Parties in connection with any arranging the debt financing arrangements (if any) and/or any real estate financing (including with respect to any sale leaseback of Parent the Company Group’s Owned Real Property) (if any) to be obtained by the Buyer Parties or Merger Sub their respective Affiliates in connection with the transactions contemplated Merger to be obtained by this Agreement the Buyer Parties or their respective Affiliates in connection with the Merger (the “Debt Financing”);
(ii) upon reasonable advance notice, including its reasonable efforts to provide the following assistance: (i) participating participate (and causing cause senior management and representativesRepresentatives, with appropriate seniority and expertise, of the Acquired Companies Company to participate) in a reasonable number of meetingsmeetings and presentations with actual or prospective lenders, presentations, road shows and due diligence sessions, drafting sessions and sessions with the Debt Financing Sources and prospective lenders rating agencies, and otherwise reasonably cooperating cooperate with the marketing and due diligence efforts for any of the Debt Financing, Financing at reasonable times and locations to be mutually agreed;
(iiiii) providing provide reasonable assistance to Parent, Merger Sub Parent and the Debt Financing Sources with the timely preparation of customary (A) rating agency presentations, bank information memoranda, confidential information memoranda, lender presentations and similar documents required in connection with or proper for the Debt Financing or customarily used to arrange transactions similar to the Debt Financing by companies of a comparable size in a comparable industry as the Company; and (B) pro forma financial statements and forecasts of financial statements of the Acquired Companies Surviving Corporation for one or more periods following the Closing Date, in each case case, based on financial information and data derived derivable without undue effort or expense by the Company from the Acquired CompanyCompany Group’s historical books and records, ; provided, however, that no member of the Acquired Companies Company Group will be required to provide any information or assistance with respect to the preparation of pro forma financial statements and forecasts of financing statements, including statements relating to (i) the determination of the proposed aggregate amount of the Debt Financing, the interest rates thereunder or the fees and expenses relating thereto, or ; (ii) the determination of any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing; or (iii) furnishing Parentany financial information related to Parent or any of its Subsidiaries or any adjustments that are not directly related to the acquisition of the Company Group;
(iv) reasonably facilitate the granting of security interests (and perfection thereof) in collateral or the reaffirmation of the pledge of collateral on or after the Closing Date and assist Parent in connection with the preparation, Merger Sub registration, execution and delivery (but in the Debt Financing Sources as promptly as practicable with financial case of execution and delivery, solely to the extent any such execution and delivery would only be effective on or after the Closing Date) of any pledge and security documents, mortgages, currency or interest hedging arrangements and other pertinent information regarding the Acquired Companies that is reasonably available to the Company definitive financing documents and certificates as may be reasonably requested by Parent or the Financing Sources (including using reasonable best efforts to obtain, to the extent applicable, consents of accountants for use of their reports in any materials relating to the Debt Financing as reasonably requested by Parent), obtain insurance certificates and endorsements, and facilitate the delivery of all stock and other certificates representing equity interests in the Company and its Subsidiaries to the extent required in connection with the Debt Financing, and otherwise reasonably facilitate the pledging of collateral and the granting of security interests in respect of the Debt Financing, in each case, as may be reasonably requested by Parent or the Financing Sources, it being understood that such documents will not take effect until the Effective Time;
(v) furnish Parent and the Financing Sources, as promptly as practicable, with to the extent customarily provided by companies of comparable size and comparable industry in transactions similar to the Debt Financing for a financing of the type being incurred, financial and other pertinent and customary information (and supplementing such information to the extent any such information contains any material misstatement of fact or omits to state a material fact necessary to make such information not misleading) regarding the Company Group as may be reasonably requested by Parent or the Financing Sources to the extent that such information is of the type and form customarily included in a bank confidential information memorandum in connection with the arrangement of financing similar to the Debt Financing or in rating agency presentations, lender presentations or other customary marketing materials;
(vi) cooperate with Parent to obtain customary and reasonable corporate and facilities ratings, consents, collateral access agreements, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, non-imputation affidavits, legal opinions, surveys, title insurance, field audit reports, property condition reports, property appraisals and all other information or documents customarily required by lenders under asset-based credit facilities or as reasonably requested by Parent, including in connection with any sale-and-leaseback agreements or arrangements to be effected at or after the Closing;
(vii) promptly and in no event later than three Business Days prior to the Closing Date, (ivA) providing deliver notices of prepayment within the time periods required by the relevant agreements governing indebtedness, (B) deliver to Parent drafts of customary payoff letters, lien terminations and instruments of discharge, (C) give any other necessary notices to allow for the payoff, discharge and termination in full at the Closing of all indebtedness required to be repaid at the Closing and (D) cooperate in the replacement, backstop or cash collateralization of any outstanding letters of credit issued for the account of the Company or any of its Subsidiaries;
(viii) provide customary authorization letters, confirmations and undertakings to the Debt Financing Sources authorizing the distribution of information to prospective lenders or investors and containing a representation to the Debt Financing Sources that the information pertaining to the Acquired Companies Company Group and based on financial information and data derived from the Company Group’s historical books and records contained in the disclosure and marketing materials related to the Debt Financing (other than forecasts and similar prospective information) is complete and correct in all material respected respects and that the public side versions of such documents, if any, do not include material non-public information about the Company or its Subsidiaries or securities; provided, (v) (A) assisting with however, that all such materials have been previously identified to, and provided to, the preparation and negotiation of definitive financing documentation Company and the schedules Company and exhibits thereto its Representatives shall have been given reasonable opportunity to review and comment thereon;
(including loan ix) facilitate and assist in the preparation, execution and delivery of one or more credit agreements, guarantees, certificates and other definitive financing documents as may be reasonably requested by Parent (including furnishing all information relating to the Company and its Subsidiaries and their respective businesses to be included in any schedules thereto or in any perfection certificates); provided that the foregoing documentation shall be subject to the occurrence of the Closing Date and become effective no earlier than the Closing Date;
(x) ensure that the Debt Financing benefits from existing lending relationships of the Company and its Subsidiaries to the extent reasonably requested by Parent;
(xi) take all corporate and other actions, subject to the occurrence of the Closing, reasonably requested by Parent to (A) permit the consummation of the Debt Financing (including distributing the proceeds of the Debt Financing, if any, obtained by any Subsidiary of the Company to the Surviving Corporation); and (B) cause the direct borrowing or incurrence of all of the proceeds of the Debt Financing by the Surviving Corporation or any of its Subsidiaries concurrently with or immediately following the Effective Time;
(xii) take any other reasonable and customary actions necessary and requested by Parent to permit the Financing Sources to evaluate the Company’s inventory, current assets, equipment, real estate and cash management systems for the purpose of establishing collateral agreements, hedging arrangements, including (A) providing sufficient access to allow such Financing Sources to complete field exams and customary officer’s and other closing certificates (including a solvency certificate)) as may reasonably be requestedconduct inventory appraisals, (B) facilitating the granting obtaining third-party appraisals and field examinations, assist in providing a reasonably detailed calculation of a security interest in and pledging of collateral, it being understood that such documents will not take effect until the Closing Date, each borrowing base and (C) cooperating facilitating the Financing Sources’ due diligence investigation and evaluation of the assets and cash management and accounting systems of the Company and the Subsidiaries and the setting up of accounts and systems as customarily required by lenders under asset-based credit facilities; and
(xiii) cooperate in satisfying the conditions precedent set forth in any the definitive agreements relating to the Debt Financing to the extent the satisfaction thereof requires the cooperation cooperation, or is in within the control of the Acquired Companiescontrol, (vi) promptly furnishing Parent, Merger Sub and the Debt Financing Sources with all documentation and other information reasonably requested by any Debt Financing Source with respect to “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, in each case, at least three Business Days prior to the Closing Date that has been reasonably requested by Parent in writing, at least ten days prior to the Closing Date, and (vii) taking corporate actions, subject to the occurrence of the Closing, necessary to permit the consummation of the Debt Financing.
(b) Nothing in this Section 6.20 will require the Acquired Companies to (i) waive or amend any terms of this Agreement, pay any commitment fee or similar fee or agree to pay any other fees or reimburse any expenses or otherwise issue or provide any indemnities prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent; (ii) enter into, approve, modify or perform any definitive agreement or commitment or distribute any cash (except to the extent subject to concurrent reimbursement by Parent) that will be effective prior to the Closing Date; (iii) incur any liability or give any indemnities in connection with the Debt Financing that are effective prior to the Effective Time; (iv) take any action that, in the good faith determination of the Company, would unreasonably interfere with the conduct of the business of the Acquired Companies; (v) provide any information that is not reasonably available to the Company, (vi) prepare separate financial statements for any of the Acquired Companies to the extent not customarily prepared by the Acquired Companies and to the extent such preparation would be unduly burdensome its Subsidiaries or change any fiscal period; (vii) adopt any resolutions, execute any consents or otherwise take any corporate or similar action that will be effective prior to the Closing; or (viii) provide any legal opinion. In addition, no action, liability or obligation of the Acquired Companies or any of its Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to the Debt Financing (other than customary authorization letters (including with respect to the presence or absence of material non-public information and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing, in each case based on financial information and data derived from the Company’s historical books and records)) will be effective until the Effective Time, and the Acquired Companies will not be required to take any action pursuant to any certificate, agreement, arrangement, document or instrument (other than customary authorization letters) that is not contingent on the occurrence of the Closing or that must be effective prior to the Effective Time. Nothing in this Section 6.20 will require (1) any officer, employee or Representative of the Acquired Companies to deliver any certificate or opinion or take any other action under this Section 6.20 that would reasonably be expected to result in personal liability to such officer or Representativetheir respective representatives.
(c) The Company hereby consents to the reasonable use of the Acquired Companies’ logos in connection with the Debt Financing, provided that such logos are used in a manner that is not intended to or reasonably likely to harm or disparage any of the Acquired Companies or the reputation or goodwill of any Acquired Company or are used in any other manner as approved by the Acquired Companies in their reasonable discretion.
(d) Promptly upon request by the Company, Parent will reimburse the Company for any reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Acquired Companies in connection with the cooperation of the Acquired Companies contemplated by Section 6.20(a). Parent shall indemnify and hold harmless the Acquired Companies and its Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments, penalties and amounts paid in settlement suffered or incurred by them in connection with any cooperation provided pursuant to this Section 6.20 or the provision of information utilized in connection therewith, except to the extent that any of the foregoing results from gross negligence, bad faith, willful misconduct or a material misstatement of the Company or its Affiliates. Parent’s obligations pursuant to the two preceding sentences are referred to collectively as the “Reimbursement Obligations”. Notwithstanding the foregoing, for the avoidance of doubt, the costs and expenses subject to the Reimbursement Obligations shall not include (x) costs and expenses incurred in connection with the preparation of financial statements that are or would be prepared in the ordinary course of business irrespective of this Agreement, (y) any ordinary course amounts payable to employees of the Company or its Affiliates with respect to services provided prior to the Closing Date and (z) any other ordinary course amounts that would have been incurred in connection with the transactions contemplated hereby regardless of any debt financing established in connection herewith and regardless of the covenants set forth in this Section 6.20(d).
Appears in 1 contract
Sources: Merger Agreement (Chico's Fas, Inc.)
Cooperation with Debt Financing. (a) Prior to the Effective TimeClosing Date, each of the Acquired Companies Company shall, and shall use cause its reasonable best efforts Subsidiaries to, and shall use reasonable best efforts to cause its and their respective officers, employees Representatives (including legal and other representatives with appropriate seniority and expertise accounting representatives) to, provide cooperation reasonably requested by ▇▇▇▇▇▇ to Parent and Merger Sub, in each case at Parent’s sole cost and expenseexpense to the extent subject to the Reimbursement Obligations, in connection with any debt financing arrangements of such cooperation as is customary and reasonably requested by Parent or Merger Sub in connection with the transactions contemplated by this Agreement (arrangement and obtainment of the “Debt Financing or any high-yield bonds being issued in lieu of all or a portion of the Debt Financing”), including its reasonable efforts to provide the following assistance: including:
(i) participating furnishing Parent and Merger Sub (and causing Parent and Merger Sub may then furnish to applicable Financing Sources) as promptly as practicable with the Required Information;
(ii) using reasonable best efforts to cause senior management and representativesof the Company, with appropriate seniority and expertise, of to assist in the Acquired Companies preparation for and to participate) participate in a reasonable number of meetingsinvestor and lender meetings (including a reasonable and limited number of one-on-one meetings and calls that are requested in advance with or by the parties acting as lead arrangers or agents for, and prospective lenders of, the Debt Financing or any high-yield bonds being issued in lieu of all or a portion of the Debt Financing), presentations, road shows, due diligence sessions (including accounting due diligence sessions), drafting sessions and sessions with rating agencies in connection with the Debt Financing Sources or any high-yield bonds being issued in lieu of all or a portion of the Debt Financing at reasonable times and prospective lenders locations mutually agreed, and otherwise reasonably cooperating to assist Parent in obtaining ratings in connection with the Debt Financing or any high-yield bonds being issued in lieu of all or a portion of the Debt Financing;
(iii) using reasonable best efforts to provide assistance with the preparation by Parent and the Financing Sources of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, syndication memoranda, offering memoranda, lender presentations, confidential information memoranda and other customary marketing documents required in connection with the Debt Financing or any high-yield bonds being issued in lieu of all or a portion of the Debt Financing (collectively, the “Debt Marketing Materials”), including (A) furnishing (x) information reasonably necessary to prepare risk factors and (y) records, data or other information reasonably available and necessary to support any statistical information or claims relating to the Company appearing in the Debt Marketing Materials and (z) customary executed certificates of the chief financial officer (or other comparable officer) of the Company with respect to financial information (including pro forma financial information) included in the Debt Marketing Materials and (B) executing and delivering customary authorization letters in connection with bank information memoranda and lender presentations (which include customary 10b-5 and material non-public information representations);
(iv) using reasonable best efforts to cooperate reasonably with the Financing Sources’ due diligence diligence, to the extent customary and reasonably requested;
(v) using reasonable best efforts for to provide reasonable and customary assistance to Parent in connection with Parent’s preparation of pro forma financial statements of the Company and its Subsidiaries of the type necessary or reasonably requested by the Financing Sources to be included in any Debt Marketing Materials in respect of the Debt Financing or any high-yield bonds being issued in lieu of all or a portion of the Debt Financing, (ii) including by providing reasonable assistance to Parent, Merger Sub financial and other pertinent information regarding the Debt Financing Sources with the timely preparation of customary (A) rating agency presentations, bank information memoranda, confidential information memoranda, lender presentations Company and similar documents required in connection with or proper for the Debt Financing or customarily used to arrange transactions similar to the Debt Financing by companies of a comparable size in a comparable industry as the Companyits Subsidiaries and their respective businesses; and (B) pro forma financial statements and forecasts of financial statements of the Acquired Companies for one or more periods following the Closing Date, in each case based on financial information and data derived from the Acquired Company’s historical books and records, provided, however, that no member neither the Company nor any of the Acquired Companies will its Subsidiaries or Representatives shall be required to provide any information or assistance relating to (A) other than with respect to the preparation Existing Credit Documents and any other Indebtedness of the Company and its Subsidiaries that is anticipated to remain outstanding following the Closing, the proposed debt and equity capitalization that is required for such pro forma financial statements and forecasts of financing statements, including relating to the determination of the proposed aggregate amount of the Debt Financing, the information or assumed interest rates thereunder or the and fees and expenses relating theretoto such debt and equity capitalization, or the determination of (B) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing; Financing or (iiiC) furnishing Parentany information related to Parent or any of its Subsidiaries or any adjustments that are not directly related to the acquisition of the Company;
(vi) using reasonable best efforts to assist in the preparation, Merger Sub execution and delivery of pledge and security documents, other definitive financing documents, including any credit agreements, notes, indentures, guarantee and collateral documents, customary closing certificates and documents and back-up therefor and for legal opinions in connection with the Debt Financing Sources or any high-yield bonds being issued in lieu of all or a portion of the Debt Financing (including executing and delivering a solvency certificate from the chief financial officer or treasurer (or other comparable officer) of the Company (in the form attached as promptly Exhibit H to the Cash Flow Credit Agreement, as practicable with financial modified to reflect the Debt Financing)) and other pertinent information regarding the Acquired Companies that is reasonably available to the Company customary documents as may be reasonably requested by Parent or the Debt Financing Sources to and otherwise facilitating the extent that such information is pledging of, grant of the type security interests in and form customarily included in a bank confidential information memorandum obtaining of perfection of any liens on collateral in connection with the arrangement of financing similar to the Debt Financing or any high-yield bonds being issued in rating agency presentations, lender presentations lieu of all or other customary marketing materials, (iv) providing customary authorization letters, confirmations and undertakings to a portion of the Debt Financing Sources authorizing the distribution of information to prospective lenders and containing a representation to the Debt Financing Sources Financing; provided that the information pertaining to the Acquired Companies contained (except in the disclosure and marketing materials related to the Debt Financing (other than forecasts and similar prospective information) is complete and correct in all material respected and that the public side versions case of such documents, if any, do not include material non-public information about the Company or its Subsidiaries or securities, (v) (A) assisting with a customary certificate of the preparation chief financial officer (or other comparable officer) of the Company described in clause (iii)(A)(z) above that is required to be delivered upon “pricing” and negotiation closing of definitive financing documentation and the schedules and exhibits thereto (including loan agreements, guarantees, collateral agreements, hedging arrangements, and customary officer’s and other closing certificates (including a solvency certificate)) as may reasonably be requestedhigh-yield bonds, (B) facilitating the granting of a security interest authorization letters set forth in and pledging of collateral, it being understood that such documents will not take effect until the Closing Date, clause (iii) above and (C) cooperating the representation letters required by the Company’s auditors in satisfying connection with the conditions precedent delivery of “comfort letters” set forth in clause (xi) below), (I) none of the documents or certificates shall be executed and/or delivered except in connection with the Closing, (II) the effectiveness thereof shall be conditioned upon, or become operative as of or after, the occurrence of the Closing and (III) no liability shall be imposed on the Company or any definitive agreements relating of its Subsidiaries or any of their respective officers or employees prior to the Debt Financing to the extent the satisfaction thereof requires the cooperation or is in the control of the Acquired Companies, Closing Date;
(vivii) promptly furnishing Parent, Merger Sub and the Debt Financing Sources with providing all documentation and other information about the Company and its Subsidiaries as is reasonably requested by any Debt Financing Source with respect to under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law on October 26, 2001, as amended from time to time) and the Customer Due Diligence Requirements for Financial Institutions issued by the U.S. Department of Treasury Financial Crimes Enforcement Network under the Bank Secrecy Act (such rule published May 11, 2016 and effective May 11, 2018, as amended from time to time) and providing a certification regarding beneficial ownership required by 31 C.F.R. § 1010.230, in each case, at least three four (4) Business Days prior to the Closing Date that has been reasonably to the extent requested by Parent in writing, writing at least ten days nine (9) Business Days prior to the Closing Date, and ;
(viiviii) taking corporate actions, subject using reasonable best efforts to ensure that the occurrence syndication efforts for the Debt Financing or any high-yield bonds being issued in lieu of all or a portion of the ClosingDebt Financing benefit from the Company’s existing lending and banking relationships;
(ix) using reasonable best efforts to cooperate with Parent and Parent’s efforts to obtain consents, necessary landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance (including providing reasonable access to Parent and its representatives to all owned or leased real property) as reasonably requested by Parent;
(x) using reasonable best efforts to take all corporate, limited liability company, partnership or other similar actions reasonably requested by Parent or any Financing Sources to permit the consummation of the Debt Financing or any high-yield bonds being issued in lieu of all or a portion of the Debt Financing.
(b) Nothing in this Section 6.20 will require the Acquired Companies to ; provided that (i) waive no such actions shall be required to be effective prior to the Closing, and (ii) no such action shall be required of any director or amend officer of the Company that is not continuing in such capacity following the Closing Date;
(xi) using reasonable best efforts to cause G▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (and any other auditor to the extent financial statements audited or reviewed by such auditor are or would be included in an offering memorandum) to (1) furnish to Parent and the Financing Sources, consistent with customary practice, customary comfort letters (including “negative assurance” comfort and change period comfort) and consents, together with drafts of such comfort letters that such independent auditors of the Company are prepared to deliver upon “pricing” and “closing” of any high-yield bonds being issued in lieu of all or a portion of the Debt Financing, and deliver such comfort letters upon the “pricing” and “closing” of any such high-yield bonds, with respect to financial information relating to the Company as reasonably requested by Parent or the Financing Sources, as necessary or customary for financings similar to the Debt Financing or any high-yield bonds being issued in lieu of all or a portion of the Debt Financing and (2) attend accounting due diligence session and drafting sessions;
(xii) using reasonable best efforts to grant the Financing Sources on reasonable terms and upon reasonable request, at reasonable times and on reasonable notice, access to the Company’s properties, rights, assets and cash management and accounting systems (including cooperating in and facilitating the completion of this Agreementfield examinations, collateral audits, asset appraisals and surveys); and
(xiii) using reasonable best efforts to furnish Parent and the Financing Sources all existing field examinations, collateral audits and asset appraisals and surveys of the Company; provided, that:
(A) in no event shall the Company or any of its Subsidiaries be required to provide any such cooperation to the extent it interferes unreasonably with the ongoing operations of the Company and its Subsidiaries;
(B) no obligation of the Company or any of its Subsidiaries or any of their respective Representatives on account of the Debt Financing shall be effective until the Closing Date (except in the case of (1) any certificate of the chief financial officer (or other comparable officer) of the Company described in clause (iii)(A)(z) above that is required to be delivered upon “pricing” and closing of the high-yield bonds, (2) the authorization letters set forth in clause (iii) above, (3) any certificate of the chief financial officer (or other comparable officer) of the Company reasonably required by Parent’s counsel in connection with the delivery of any legal opinions such counsel may be required to deliver (including the certificates set forth in clauses (iii) and (vi) above, and (4) the representation letters required by the Company’s auditors in connection with the delivery of “comfort letters” set forth in clause (xi) above);
(C) in no event shall the Company or any of its Subsidiaries be required to pay any commitment fee or similar fee or agree to pay any other fees or reimburse any expenses or otherwise issue or provide any indemnities prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent; (ii) fee, enter into, approve, modify or perform into any definitive agreement or commitment or distribute agree to provide any cash (except to indemnity in connection with the extent subject to concurrent reimbursement by Parent) Financing that will be is effective prior to the Closing Date; ;
(D) nothing in this Section 6.14 shall require any action that would conflict with or violate the Company’s or any of its Subsidiaries’ organizational documents or any applicable Laws or result in, prior to the Closing Date, the contravention of any Material Contract to which the Company or its Subsidiaries is a party;
(E) neither the Company or its Subsidiaries nor any Persons who is a director, officer or employee of the Company or its Subsidiaries shall be required to (x) pass resolutions or consents to approve or authorize the execution of the Debt Financing (except those which are subject to the occurrence of the Closing passed by directors or officers continuing in their positions following the Closing), or (y) execute any document or Contract (except in the case of (1) any certificate of the chief financial officer (or other comparable officer) of the Company described in clause (iii)(A)(z) above that is required to be delivered upon “pricing” and closing of the high-yield bonds, (2) the authorization letters set forth in clause (iii) incur any liability or give any indemnities above and (3) the representation letters required by the Company’s auditors in connection with the delivery of “comfort letters” set forth in clause (xi) above) prior to the occurrence of the Closing in connection with the Debt Financing that are effective prior Financing;
(F) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to disclose or provide any information in connection with the Effective Time; (iv) take any action thatFinancing, the disclosure of which, in the good faith determination judgement of the Company, would unreasonably interfere with is subject to attorney-client privilege or could result in the conduct disclosure of any trade secrets or the violation of any confidentiality obligation; provided, that the Company or such Subsidiary shall use reasonable best efforts to provide an alternative means of disclosing or providing such information, and in the case of any confidentiality obligation, the Company shall, to the extent permitted by such confidentiality obligations, notify Parent if any such information that Parent, Merger Sub or any Financing Source has specifically identified and requested is being withheld as a result of any such obligation of confidentiality;
(G) none of the business Company or its Subsidiaries or any of their respective Representatives shall be required to prepare or deliver (except to the Acquired Companies; extent (vi) provide any constituting Required Information, (ii) in the case of clause (x) or (y), such financial information that is not reasonably available relates to the Company’s borrowing base (or related terms of similar import) and is of the type and as would customarily be necessary in connection with private-side marketing or syndication materials for asset-based revolving credit facilities or (iii) such financial information is required to be delivered in accordance with Section 6.14(c)), (vix) prepare separate any financial statements for any of the Acquired Companies to the extent information in a form not customarily prepared by the Acquired Companies and Company or its Subsidiaries in the ordinary course of their business, (y) any financial information with respect to the extent such preparation would be unduly burdensome or change any a fiscal period; (vii) adopt any resolutions, execute any consents or otherwise take any corporate or similar action period that will be effective prior to the Closing; has not yet ended or (viiiz) provide any legal opinion. In addition, no action, liability pro forma financial information or obligation projections (without waiver of the Acquired Companies obligations of the Company set forth in clause (v) above);
(H) none of the Company or its Subsidiaries or any of its their respective Representatives pursuant shall be required to deliver any certificate, agreement, arrangement, document or instrument relating to the Debt Financing (other than customary authorization letters (including legal opinion in connection with respect to the presence or absence of material non-public information and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing, in each case based on financial information and data derived from ;
(I) none of the Company’s historical books and records)) will be effective until the Effective Time, and the Acquired Companies will not Company or its Subsidiaries or any of their respective Representatives shall be required to take any action pursuant that would cause the Company or any of its Subsidiaries to breach any certificaterepresentation, agreementwarranty, arrangement, document covenant or instrument agreement in this Agreement; and
(other than customary authorization lettersJ) that is not contingent on the occurrence none of the Closing Company or that must its Subsidiaries or any of their respective Representatives shall be effective prior required to the Effective Time. Nothing in this Section 6.20 will require (1) any officer, employee or Representative of the Acquired Companies to deliver any certificate or opinion or take any other action under this Section 6.20 that would could reasonably be expected to result in personal liability to such cause any director, officer or Representative.
(c) The Company hereby consents to the reasonable use employee or stockholder of the Acquired Companies’ logos in connection with the Debt Financing, provided that such logos are used in a manner that is not intended to Company or reasonably likely to harm or disparage any of its Subsidiaries to incur personal liability. Parent shall, in the Acquired Companies or event the reputation or goodwill of any Acquired Company or are used in any other manner as approved by the Acquired Companies in their reasonable discretion.
Closing shall not occur, (dx) Promptly promptly, upon request by the Company, Parent will reimburse the Company for any all reasonable and documented out-of-pocket costs and expenses (including (A) reasonable and documented attorneys’ feesfees and (B) reasonable and documented fees and expenses of the Company’s accounting firms engaged to assist in connection with the Financing, including performing additional requested procedures, reviewing any offering documents, participating in any meetings and providing any comfort letters) incurred by the Acquired Companies Company or any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Acquired Companies contemplated by Section 6.20(a). Parent shall indemnify and hold harmless the Acquired Companies Company and its Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments, penalties and amounts paid in settlement suffered or incurred by them in connection with any cooperation provided pursuant to this Section 6.20 or the provision of information utilized in connection therewith, except to the extent that any of the foregoing results from gross negligence, bad faith, willful misconduct or a material misstatement of the Company or its Affiliates. Parent’s obligations pursuant to the two preceding sentences are referred to collectively as the “Reimbursement Obligations”. Notwithstanding the foregoing, for the avoidance of doubt, the costs and expenses subject to the Reimbursement Obligations shall not include (x) costs and expenses incurred in connection with the preparation of financial statements that are or would be prepared in the ordinary course of business irrespective of this Agreement, (y) any ordinary course amounts payable to employees of the Company or its Affiliates with respect to services provided prior to the Closing Date and (z) any other ordinary course amounts that would have been incurred in connection with the transactions contemplated hereby regardless of any debt financing established in connection herewith and regardless of the covenants set forth in this Section 6.20(d).Su
Appears in 1 contract
Sources: Merger Agreement (Cornerstone Building Brands, Inc.)
Cooperation with Debt Financing. (a) Prior to the Effective Time, each of the Acquired Companies shall Company will use its reasonable best efforts to, and shall will cause each of its Subsidiaries to use their respective reasonable best efforts to and will use reasonable best efforts to cause its and their respective officers, employees Representatives to use reasonable best efforts to do the following:
(i) provide Parent and other representatives Merger Sub with appropriate seniority and expertise to, provide such reasonable cooperation as may be reasonably requested by ▇▇▇▇▇▇ Parent or Merger Sub to assist them in arranging and Merger Sub, at Parent’s sole cost and expense, in connection with any consummating the debt financing arrangements of (if any) to be obtained by Parent or Merger Sub in connection with the transactions contemplated by this Agreement Merger (the “Debt Financing”), including its reasonable efforts to provide the following assistance: ;
(iii) participating participate (and causing cause senior management and representativesRepresentatives, with appropriate seniority and expertise, of the Acquired Companies Company to participate) ), at reasonable times and upon reasonable prior written notice, in a reasonable and limited number of meetings, presentationsmeetings and presentations with actual or prospective lenders, due diligence sessions, drafting sessions and sessions with the Debt Financing Sources and prospective lenders rating agencies, and otherwise reasonably cooperating provide reasonable and customary cooperation with the marketing and due diligence efforts for any of the Debt Financing, ;
(iiiii) providing reasonable assistance to assist Parent, Merger Sub and the Debt Financing Sources with the timely preparation of customary (A) rating agency presentations, bank information memoranda, confidential information memoranda, lender presentations and similar documents required in connection with or proper for the Debt Financing or customarily used to arrange transactions similar to the Debt Financing by companies of a comparable size in a comparable industry as the Company; and (B) pro forma financial statements and forecasts of financial statements of the Acquired Companies Surviving Corporation for one or more periods following the Closing Date, in each case case, based on financial information and data derived from the Acquired Company’s historical books and records, ; provided, however, that no member of the Acquired Companies Company Group will be required to provide any information or assistance with respect to the preparation of (x) pro forma financial statements and or (y) forecasts of financing statements, including in each case of clauses (x) and (y), relating to (i) the determination of the proposed aggregate amount of the Debt Financing and the Equity Financing, the interest rates thereunder or the fees and expenses relating thereto, or ; (ii) the determination of any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing; or (iii) furnishing any financial information related to Parent or any of its Subsidiaries or any adjustments that are not directly related to the acquisition of the Company by Parent;
(iv) assist ▇▇▇▇▇▇ and Merger Sub in connection with the preparation, execution and delivery (but in the case of execution and delivery, solely to the extent any such execution and delivery would only be effective at or after the Effective Time) of any pledge and security documents (including consents, landlord waivers and estoppels, non- disturbance agreements, non-invasive environmental assessments, non-imputation affidavits, surveys and title insurance as reasonably requested by Parent or Merger Sub), mortgages, currency or interest hedging arrangements and other definitive financing documents and certificates as may be reasonably requested by Parent, Merger Sub or the Financing Sources, obtaining insurance certificates and endorsements, and facilitating the delivery of all stock and other certificates representing equity interests in the Company and its Subsidiaries to the extent required in connection with the Debt Financing, and otherwise reasonably facilitating the pledging of collateral and the granting of security interests (and perfection thereof) in respect of the Debt Financing (including the reaffirmation of the pledge of collateral on or after the Closing Date), it being understood that, in each case, such documents will not take effect until the Effective Time, and providing reasonable cooperation with Parent to obtain customary and reasonable corporate and facilities ratings;
(v) furnish Parent, Merger Sub and the Debt Financing Sources Sources, as promptly as practicable practicable, with the Required Financial Statements and, in each case solely to the extent customarily provided by companies of comparable size and comparable industry in transactions similar to the Debt Financing, financial and other pertinent and customary information regarding the Acquired Companies that is reasonably available to the Company Group as may be reasonably requested by Parent Parent, Merger Sub or the Debt Financing Sources to the extent that such information is of the type and form customarily included in a bank confidential information memorandum in connection with the arrangement of financing similar to the Debt Financing or in rating agency presentations, lender presentations or other customary marketing materials, ;
(ivvi) providing provide customary authorization letters, confirmations and undertakings to the Debt Financing Sources authorizing the distribution of information about the Company Group to prospective lenders or investors and containing a representation to the Debt Financing Sources that the information pertaining to the Acquired Companies Company Group and based on financial information and data derived from the Company’s historical books and records contained in the disclosure and marketing materials related to the Debt Financing (other than forecasts and similar prospective information) which was, in each case, provided by the Company, is complete and correct in all material respected respects and that the public side versions of such documents, if any, do not include material non-public information about the Company or its Subsidiaries Subsidiaries; provided, however, that all such materials have been previously identified to, and provided to, the Company with reasonable advance notice and that the Company has been given an opportunity to review and comment on such materials and exclude any information that the Company believes to constitute material non-public information);
(vii) facilitate and assist in the preparation, execution and delivery of one or securities, (v) (A) assisting with the preparation and negotiation of definitive financing documentation and the schedules and exhibits thereto (including loan more credit agreements, guarantees, collateral agreements, hedging arrangements, and customary officer’s certificates and other closing certificates (including a solvency certificate)) definitive financing documents as may be reasonably requested by Parent or Merger Sub (including, furnishing all information relating to the Company and its Subsidiaries and their respective businesses to be requestedincluded in any schedules thereto or in any perfection certificates); provided that the foregoing documentation shall be subject to the occurrence of the Closing Date and shall become effective no earlier than the Effective Time;
(viii) take all corporate and other actions, subject to the occurrence of the Closing, reasonably requested by Parent or Merger Sub to permit the consummation of the Debt Financing;
(Bix) facilitating the granting of a security interest promptly furnish (but in and pledging of collateral, it being understood that such documents will not take effect until no event later than three Business Days prior to the Closing Date, and (C) cooperating in satisfying the conditions precedent set forth in any definitive agreements relating to the Debt Financing to the extent the satisfaction thereof requires the cooperation or is in the control of the Acquired Companies, (vi) promptly furnishing Parent, Merger ▇▇▇▇▇▇ Sub and the Debt Financing Sources with all documentation and other information about the Company Group as is reasonably requested by any Debt the Financing Source with respect Sources relating to applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, to the extent requested in each case, writing at least three ten (10) Business Days prior to the Closing Date that has been reasonably requested by Parent in writing, at least ten days prior to the Closing Date, and (vii) taking corporate actions, subject to the occurrence of the Closing, necessary to permit the consummation of the Debt Financing.; and
(bx) Nothing provide reasonable cooperation in this Section 6.20 will require satisfying the Acquired Companies to (i) waive or amend any terms of this Agreement, pay any commitment fee or similar fee or agree to pay any other fees or reimburse any expenses or otherwise issue or provide any indemnities prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent; (ii) enter into, approve, modify or perform any definitive agreement or commitment or distribute any cash (except to the extent subject to concurrent reimbursement by Parent) that will be effective prior to the Closing Date; (iii) incur any liability or give any indemnities in connection with the Debt Financing that are effective prior to the Effective Time; (iv) take any action that, conditions precedent set forth in the good faith determination of the Company, would unreasonably interfere with the conduct of the business of the Acquired Companies; (v) provide any information that is not reasonably available to the Company, (vi) prepare separate financial statements for any of the Acquired Companies to the extent not customarily prepared by the Acquired Companies and to the extent such preparation would be unduly burdensome or change any fiscal period; (vii) adopt any resolutions, execute any consents or otherwise take any corporate or similar action that will be effective prior to the Closing; or (viii) provide any legal opinion. In addition, no action, liability or obligation of the Acquired Companies or any of its Representatives pursuant to any certificate, agreement, arrangement, document or instrument definitive agreements relating to the Debt Financing (other than customary authorization letters (including with respect to the presence extent satisfaction thereof requires the cooperation, or absence is within the control, of material non-public information and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing, in each case based on financial information and data derived from the Company’s historical books and records)) will be effective until the Effective Time, and the Acquired Companies will not be required to take any action pursuant to any certificate, agreement, arrangement, document or instrument (other than customary authorization letters) that is not contingent on the occurrence of the Closing or that must be effective prior to the Effective Time. Nothing in this Section 6.20 will require (1) any officer, employee or Representative of the Acquired Companies to deliver any certificate or opinion or take any other action under this Section 6.20 that would reasonably be expected to result in personal liability to such officer or Representative.
(c) The Company hereby consents to the reasonable use of the Acquired Companies’ logos in connection with the Debt Financing, provided that such logos are used in a manner that is not intended to or reasonably likely to harm or disparage any of the Acquired Companies or the reputation or goodwill of any Acquired Company or are used in any other manner as approved by the Acquired Companies in their reasonable discretion.
(d) Promptly upon request by the Company, Parent will reimburse the Company for any reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Acquired Companies in connection with the cooperation of the Acquired Companies contemplated by Section 6.20(a). Parent shall indemnify and hold harmless the Acquired Companies and its Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments, penalties and amounts paid in settlement suffered Subsidiaries or incurred by them in connection with any cooperation provided pursuant to this Section 6.20 or the provision of information utilized in connection therewith, except to the extent that any of the foregoing results from gross negligence, bad faith, willful misconduct or a material misstatement of the Company or its Affiliates. Parent’s obligations pursuant to the two preceding sentences are referred to collectively as the “Reimbursement Obligations”. Notwithstanding the foregoing, for the avoidance of doubt, the costs and expenses subject to the Reimbursement Obligations shall not include (x) costs and expenses incurred in connection with the preparation of financial statements that are or would be prepared in the ordinary course of business irrespective of this Agreement, (y) any ordinary course amounts payable to employees of the Company or its Affiliates with respect to services provided prior to the Closing Date and (z) any other ordinary course amounts that would have been incurred in connection with the transactions contemplated hereby regardless of any debt financing established in connection herewith and regardless of the covenants set forth in this Section 6.20(d)their respective Representatives.
Appears in 1 contract
Sources: Merger Agreement (Rover Group, Inc.)
Cooperation with Debt Financing. (a) Prior Until the Closing, and in all cases subject to the Effective Timelimitations set forth herein, each of the Acquired Companies shall Company will use its reasonable best efforts to, and shall will use its reasonable best efforts to cause each of its Subsidiaries and its and their respective officersRepresentatives to (other than with respect to clauses (iv)(B), employees (vii) and other representatives with appropriate seniority and expertise to(x) below, which shall not be subject to such reasonable best efforts qualifier), provide Parent with such reasonable cooperation as may be reasonably requested by ▇▇▇▇▇▇ and Merger Sub, at Parent’s sole cost and expense, Parent to assist the Buyer Parties in connection with any debt financing arrangements of Parent arranging the Debt Financing to be obtained by the Buyer Parties or Merger Sub their respective Affiliates in connection with the transactions contemplated by this Agreement (the “Debt Financing”)Transactions, including its reasonable efforts to provide the following assistance: including:
(i) participating (and causing senior management and representativesRepresentatives, with appropriate seniority and expertise, of the Acquired Companies Company to participate) in a reasonable number of meetingsmeetings and presentations with actual or prospective lenders, presentations, road shows and due diligence sessions, drafting sessions and sessions with the Debt Financing Sources and prospective lenders rating agencies, and otherwise reasonably cooperating with the marketing and due diligence efforts for any of the Debt FinancingFinancing (which, at the Company’s option, may be attended via teleconference or virtual meeting platforms) upon reasonable advance notice, during normal business hours and at reasonable times and locations to be mutually agreed;
(ii) providing reasonable assistance to Parent, Merger Sub Parent and the Debt Financing Sources with the timely preparation of customary (A) rating agency presentations, bank information memoranda, confidential information memoranda, lender presentations and similar documents documents, in each case, solely with respect to information relating to the Company Group, and as required in connection with or proper for the Debt Financing or customarily used to arrange transactions similar to the Debt Financing by companies of a comparable size in a comparable industry as the CompanyFinancing; and (B) pro forma financial statements and forecasts of financial statements of the Acquired Companies Surviving Corporation for one or more periods following the Closing Date, in each case case, based on available financial information and data derived derivable from the Acquired CompanyCompany Group’s historical books and records, ; provided, however, that no member of the Acquired Companies Company Group will be required to provide any information or assistance with respect to the preparation of pro forma financial statements and forecasts of financing statements, including relating to (i) the determination of the proposed aggregate amount of the Debt Financing, the interest rates thereunder or the fees and expenses relating thereto, or ; (ii) the determination of any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing; or (iii) furnishing Parentany financial information related to Parent or any of its Subsidiaries or any adjustments whether or not directly related to the acquisition of the Company Group;
(iii) providing reasonable cooperation in granting of security interests (and perfection thereof) in collateral or the reaffirmation of the pledge of collateral on or after the Closing Date, Merger Sub including assisting Parent in connection with the preparation, registration, execution and delivery (but in the Debt Financing Sources as promptly as practicable with financial case of execution and delivery, solely to the extent any such execution and delivery would only be effective on or after the Closing Date) of any pledge and security documents, mortgages, currency or interest hedging arrangements and other pertinent information regarding the Acquired Companies that is reasonably available to the Company definitive financing documents and certificates as may be reasonably requested by Parent or the Debt Financing Sources (including using reasonable best efforts to obtain, to the extent that such information is applicable and only if practicable, consents of accountants for use of their reports in any materials relating to the type Debt Financing as reasonably requested by Parent), obtaining insurance certificates and form customarily included endorsements, executing payoff letters and related release documentation (to the extent applicable), and facilitating the delivery of all stock and other certificates representing equity interests in a bank confidential information memorandum the Company and its Subsidiaries to the extent required in connection with the arrangement Debt Financing on the Closing Date, and otherwise reasonably facilitating the pledging of financing similar collateral and the granting of security interests in respect of the Debt Financing required on the Closing Date, in each case, as may be reasonably requested by Parent or the Debt Financing Sources, it being understood that such documents will not take effect until the Effective Time;
(iv) furnishing Parent and the Debt Financing Sources, as promptly as practicable, with (A) available financial and other pertinent and customary information (and supplementing such information upon the reasonable request of Parent to the extent any such information contains any material misstatement of fact or omits to state a material fact necessary to make such information not misleading) regarding the Company Group as may be reasonably requested by Parent or the Debt Financing Sources and (B) the financial statements described in paragraph 2 of ▇▇▇▇▇ ▇▇ to the Debt Financing Commitment Letter (as in effect on the date hereof);
(v) cooperating with Parent to obtain reasonable corporate and facilities ratings, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, non-imputation affidavits, legal opinions, surveys and title insurance as reasonably requested by Parent, including in connection with any sale-and-leaseback agreements or in rating agency presentations, lender presentations arrangements to be effected at or other customary marketing materials, after the Closing;
(ivvi) providing customary reasonably requested authorization letters, confirmations and undertakings letters to the Debt Financing Sources authorizing the distribution of information to prospective lenders or investors and containing a representation to the Debt Financing Sources that the information pertaining to the Acquired Companies Company Group and based on financial information and data derived from the Company Group’s historical books and records contained in the disclosure and marketing materials related to the Debt Financing (other than forecasts and similar prospective information) is complete and correct in all material respected respects and that the public side versions of such documents, if any, do not include material non-public information about the Company or its Subsidiaries or securities;
(vii) facilitating and assisting in the preparation, (v) (A) assisting with the preparation execution and negotiation delivery of definitive financing documentation and the schedules and exhibits thereto (including loan one or more credit agreements, guarantees, collateral agreements, hedging arrangements, and customary officer’s certificates and other closing certificates definitive financing documents as may be reasonably requested by Parent (including a solvency certificatefurnishing all information relating to the Company and its Subsidiaries and their respective businesses to be included in any schedules thereto or in any perfection certificates); provided, that the foregoing documentation shall be subject to the occurrence of the Closing Date and become effective no earlier than the Closing Date;
(viii) as may ensuring that the Debt Financing benefits from existing lending relationships of the Company and its Subsidiaries to the extent practicable and reasonably be requestedrequested by Parent;
(ix) taking all corporate and other actions, subject to the occurrence of the Closing, reasonably necessary or reasonably requested by Parent to (A) permit the consummation of the Debt Financing (including distributing the proceeds of any Debt Financing obtained by any Subsidiary of the Company to the Surviving Corporation); and (B) facilitating cause the granting direct borrowing or incurrence of a security interest all of the proceeds of the Debt Financing by the Surviving Corporation or any of its Subsidiaries substantially concurrently with the Closing and permit the proceeds to be made available substantially concurrently with the Closing to fund the Financing;
(x) promptly furnishing (but in and pledging of collateral, it being understood that such documents will not take effect until no event later than three (3) Business Days prior to the Closing Date, and (C) cooperating in satisfying the conditions precedent set forth in any definitive agreements relating to the Debt Financing to the extent the satisfaction thereof requires the cooperation or is in the control of the Acquired Companies, (vi) promptly furnishing Parent, Merger Sub Parent and the Debt Financing Sources with all documentation and other information about the Company Group as is reasonably requested in writing by any Parent or the Debt Financing Source Sources with respect to applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, to the extent requested in each case, writing at least three seven (7) Business Days prior to the Closing Date that has been reasonably requested by Parent in writing, at least ten days prior to the Closing Date, and (vii) taking corporate actions, subject to the occurrence of the Closing, necessary to permit the consummation of the Debt Financing.; and
(bxi) Nothing cooperating in this Section 6.20 will require satisfying the Acquired Companies to (i) waive or amend any terms of this Agreement, pay any commitment fee or similar fee or agree to pay any other fees or reimburse any expenses or otherwise issue or provide any indemnities prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent; (ii) enter into, approve, modify or perform any definitive agreement or commitment or distribute any cash (except to the extent subject to concurrent reimbursement by Parent) that will be effective prior to the Closing Date; (iii) incur any liability or give any indemnities in connection with the Debt Financing that are effective prior to the Effective Time; (iv) take any action that, conditions precedent set forth in the good faith determination of the Company, would unreasonably interfere with the conduct of the business of the Acquired Companies; (v) provide any information that is not reasonably available to the Company, (vi) prepare separate financial statements for any of the Acquired Companies to the extent not customarily prepared by the Acquired Companies and to the extent such preparation would be unduly burdensome or change any fiscal period; (vii) adopt any resolutions, execute any consents or otherwise take any corporate or similar action that will be effective prior to the Closing; or (viii) provide any legal opinion. In addition, no action, liability or obligation of the Acquired Companies or any of its Representatives pursuant to any certificate, agreement, arrangement, document or instrument definitive agreements relating to the Debt Financing (other than customary authorization letters (including with respect to the presence extent satisfaction thereof requires the cooperation, or absence is within the control, of material non-public information and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing, in each case based on financial information and data derived from the Company’s historical books and records)) will be effective until the Effective Time, and the Acquired Companies will not be required to take any action pursuant to any certificate, agreement, arrangement, document or instrument (other than customary authorization letters) that is not contingent on the occurrence of the Closing or that must be effective prior to the Effective Time. Nothing in this Section 6.20 will require (1) any officer, employee or Representative of the Acquired Companies to deliver any certificate or opinion or take any other action under this Section 6.20 that would reasonably be expected to result in personal liability to such officer or Representative.
(c) The Company hereby consents to the reasonable use of the Acquired Companies’ logos in connection with the Debt Financing, provided that such logos are used in a manner that is not intended to or reasonably likely to harm or disparage any of the Acquired Companies or the reputation or goodwill of any Acquired Company or are used in any other manner as approved by the Acquired Companies in their reasonable discretion.
(d) Promptly upon request by the Company, Parent will reimburse the Company for any reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Acquired Companies in connection with the cooperation of the Acquired Companies contemplated by Section 6.20(a). Parent shall indemnify and hold harmless the Acquired Companies and its Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments, penalties and amounts paid in settlement suffered Subsidiaries or incurred by them in connection with any cooperation provided pursuant to this Section 6.20 or the provision of information utilized in connection therewith, except to the extent that any of the foregoing results from gross negligence, bad faith, willful misconduct or a material misstatement of the Company or its Affiliates. Parent’s obligations pursuant to the two preceding sentences are referred to collectively as the “Reimbursement Obligations”. Notwithstanding the foregoing, for the avoidance of doubt, the costs and expenses subject to the Reimbursement Obligations shall not include (x) costs and expenses incurred in connection with the preparation of financial statements that are or would be prepared in the ordinary course of business irrespective of this Agreement, (y) any ordinary course amounts payable to employees of the Company or its Affiliates with respect to services provided prior to the Closing Date and (z) any other ordinary course amounts that would have been incurred in connection with the transactions contemplated hereby regardless of any debt financing established in connection herewith and regardless of the covenants set forth in this Section 6.20(d)their respective representatives.
Appears in 1 contract
Cooperation with Debt Financing. (a) Prior The parties acknowledge that Parent and its Subsidiaries may attempt to the Effective Time, each of the Acquired Companies shall use its reasonable best efforts to, and shall use reasonable best efforts to cause its respective officers, employees and other representatives with appropriate seniority and expertise to, provide cooperation reasonably requested by ▇▇▇▇▇▇ and Merger Sub, at Parent’s sole cost and expense, in connection with any arrange third party debt financing arrangements for the purpose of Parent or Merger Sub in connection with funding the transactions contemplated by this Agreement (the “Debt Financing”), including ) and the Company shall use its commercially reasonable efforts to provide to Parent and its Subsidiaries, and shall cause its respective Representatives to provide all cooperation reasonably requested by Parent that is customary in connection with the arrangement, syndication and consummation of the Debt Financing, which commercially reasonable efforts shall include (a) furnishing Parent and its Subsidiaries and the Debt Financing Sources, as promptly as reasonably practicable following assistance: Parent’s request, with information regarding the Company customary for the arrangement and syndication of loans contemplated by the Debt Financing, to the extent reasonably available to the Company and its Representatives and reasonably requested by Parent to assist in preparation of customary bank information memoranda, rating agency or lender presentations relating to such arrangement and syndication of loans, (ib) participating (and causing senior management and representatives, with appropriate seniority and expertise, of the Acquired Companies to participate) in a reasonable number of meetings, presentations, due diligence sessions, drafting sessions lender meetings and sessions meetings with the Debt Financing Sources and prospective lenders and otherwise reasonably cooperating with the marketing and due diligence efforts for any of the Debt Financing, (ii) providing reasonable assistance to Parent, Merger Sub and the Debt Financing Sources with the timely preparation of customary (A) rating agency presentations, bank information memoranda, confidential information memoranda, lender presentations and similar documents required in connection with or proper for the Debt Financing or customarily used to arrange transactions similar to the Debt Financing by companies of a comparable size in a comparable industry as the Company; and (B) pro forma financial statements and forecasts of financial statements of the Acquired Companies for one or more periods following the Closing Date, in each case based on financial information and data derived from the Acquired Company’s historical books and records, provided, however, that no member of the Acquired Companies will be required to provide any information or assistance with respect to the preparation of pro forma financial statements and forecasts of financing statements, including relating to the determination of the proposed aggregate amount of the Debt Financing, the interest rates thereunder or the fees and expenses relating thereto, or the determination of any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used agencies in connection with the Debt Financing; Financing at times and locations to be mutually agreed, (iiic) furnishing Parentassisting in (i) the preparation and execution of one or more credit agreements, Merger Sub and the Debt Financing Sources as promptly as practicable with financial currency or interest hedging agreements, delivery of one or more perfection certificates, security agreements and other pertinent information regarding the Acquired Companies that is reasonably available to the Company collateral documents or other related documents as may be reasonably requested by Parent or any of its Subsidiaries and otherwise facilitating the Debt Financing Sources to pledging of collateral or (ii) the extent amendment of any currency or interest hedging agreements entered into by the Company, in each case, on terms that such information is of the type and form customarily included in a bank confidential information memorandum are reasonably requested by Parent in connection with the arrangement Debt Financing; provided that no obligation of financing similar to the Debt Financing or in rating agency presentations, lender presentations or other customary marketing materials, (iv) providing customary authorization letters, confirmations and undertakings to the Debt Financing Sources authorizing the distribution of information to prospective lenders and containing a representation to the Debt Financing Sources that the information pertaining to the Acquired Companies contained in the disclosure and marketing materials related to the Debt Financing (other than forecasts and similar prospective information) is complete and correct in all material respected and that the public side versions of such documents, if any, do not include material non-public information about the Company thereof under any such agreements or its Subsidiaries or securities, (v) (A) assisting with the preparation and negotiation of definitive financing documentation and the schedules and exhibits thereto (including loan agreements, guarantees, collateral agreements, hedging arrangements, and customary officer’s and other closing certificates (including a solvency certificate)) as may reasonably amendments shall be requested, (B) facilitating the granting of a security interest in and pledging of collateral, it being understood that such documents will not take effect effective until the Closing Date, Date and (Cd) cooperating in satisfying the conditions precedent set forth in any the Debt Financing and the definitive agreements relating to documentation entered into in connection with the Debt Financing to the extent the satisfaction thereof of such condition requires the cooperation of, or is within the reasonable control of, the Company and its Representatives; provided, however, that in connection with the control cooperation set forth in this Section 6.16, (x) no obligation of the Acquired CompaniesCompany under any agreement, certificate, document or instrument (viother than, for the avoidance of doubt, the authorization letters referenced below) promptly furnishing Parent, Merger Sub shall be effective until the Closing Date and (y) the Company shall not be required to pay any commitment or other fee or incur any other liability in connection with the Debt Financing Sources with prior to the Closing Date. Notwithstanding anything to the contrary in this Agreement, the Company and its Representatives shall furnish to Parent and its Subsidiaries promptly following written request by Parent or any of its Subsidiaries (1) provided that such request is received by the Company at least nine Business Days prior to the Closing Date, all documentation and other information reasonably requested required by any Debt Financing Source with respect to regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation, the USA PATRIOT ActAct and certificates under the beneficial ownership regulations, in each case, at least three which documentation and information shall be provided to Parent and its Subsidiaries no later than four Business Days prior to the Closing Date that has been reasonably requested Date, (2) all historical financial statements required by Parent in writing, at least ten days prior any Debt Financing Source and all other historical financial statements and data available to the Closing DateCompany which are reasonably required for the preparation of the pro forma financial statements required by any Debt Financing Source (for the avoidance of doubt, Parent and its Subsidiaries shall be responsible for the preparation of such pro forma financial statements) and (vii3) taking corporate actions, subject to the occurrence of the Closing, necessary to permit the consummation customary authorization letters in respect of the Debt Financing.
(b) Nothing in this Section 6.20 will require the Acquired Companies to (i) waive or amend any terms of this Agreement, pay any commitment fee or similar fee or agree to pay any other fees or reimburse any expenses or otherwise issue or provide any indemnities prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent; (ii) enter into, approve, modify or perform any definitive agreement or commitment or distribute any cash (except to the extent subject to concurrent reimbursement by Parent) that will be effective prior to the Closing Date; (iii) incur any liability or give any indemnities in connection with the Debt Financing that are effective prior to the Effective Time; (iv) take any action that, in the good faith determination of the Company, would unreasonably interfere with the conduct of the business of the Acquired Companies; (v) provide any information that is not reasonably available to the Company, (vi) prepare separate financial statements for any of the Acquired Companies to the extent not customarily prepared by the Acquired Companies and to the extent such preparation would be unduly burdensome or change any fiscal period; (vii) adopt any resolutions, execute any consents or otherwise take any corporate or similar action that will be effective prior to the Closing; or (viii) provide any legal opinion. In addition, no action, liability or obligation of the Acquired Companies or any of its Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to the Debt Financing (other than customary authorization letters (including with respect to the presence or absence of material non-public information and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing, in each case based on financial information and data derived from the Company’s historical books and records)) will be effective until the Effective Time, and the Acquired Companies will not be required to take any action pursuant to any certificate, agreement, arrangement, document or instrument (other than customary authorization letters) that is not contingent on the occurrence of the Closing or that must be effective prior to the Effective Time. Nothing in this Section 6.20 will require (1) any officer, employee or Representative of the Acquired Companies to deliver any certificate or opinion or take any other action under this Section 6.20 that would reasonably be expected to result in personal liability to such officer or Representative.
(c) The Company hereby consents to the reasonable use of its logos following the Acquired Companies’ logos Closing in connection with 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 any of the Acquired Companies Company or the reputation or goodwill of the any Acquired Company or are used in any other manner as approved by the Acquired Companies in their reasonable discretion.
(d) Promptly upon request by of the Company, Parent will reimburse . All non-public or otherwise confidential information regarding the Company for any reasonable and documented out-of-pocket costs its businesses obtained by Parent and expenses (including reasonable its Subsidiaries and documented attorneys’ fees) incurred by the Acquired Companies Debt Financing Sources pursuant to this Section 6.16 shall be kept confidential in accordance with the Confidentiality Agreement, except as is customary in connection with the cooperation of the Acquired Companies contemplated by Section 6.20(a). marketing efforts and Parent shall indemnify and hold harmless the Acquired Companies and its Representatives from Subsidiaries shall be permitted to disclose such information to potential sources of capital, rating agencies, prospective lenders and against any investors and all liabilitiestheir respective officers, lossesemployees, damages, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments, penalties representatives and amounts paid in settlement suffered or incurred by them in connection with any cooperation provided pursuant to this Section 6.20 or the provision of information utilized in connection therewith, except to the extent that any of the foregoing results from gross negligence, bad faith, willful misconduct or a material misstatement of the Company or its Affiliates. Parent’s obligations pursuant to the two preceding sentences are referred to collectively as the “Reimbursement Obligations”. Notwithstanding the foregoing, for the avoidance of doubt, the costs and expenses subject to the Reimbursement Obligations shall not include (x) costs and expenses incurred advisors in connection with the preparation of financial statements that are or would be prepared Debt Financing subject to customary confidentiality provisions, including pursuant to customary information undertakings included in the ordinary course of business irrespective of this Agreement, (y) any ordinary course amounts payable to employees of the Company or its Affiliates with respect to services provided prior to the Closing Date and (z) any other ordinary course amounts that would have been incurred in connection with the transactions contemplated hereby regardless of any debt financing established in connection herewith and regardless of the covenants set forth in this Section 6.20(d)marketing materials.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (CCC Intelligent Solutions Holdings Inc.)
Cooperation with Debt Financing. (a) Prior to the Effective TimeClosing Date, each of the Acquired Companies shall use its reasonable best efforts toCompany shall, and shall cause its Subsidiaries to and instruct its and their respective Representatives to, use reasonable best efforts to cause its respective officers, employees and other representatives with appropriate seniority and expertise to, provide cooperation reasonably requested by ▇▇▇▇▇▇ to Parent and Merger Sub, in each case at Parent’s sole cost and expenseexpense but subject to the Reimbursement Obligations, in connection with any debt financing arrangements of such customary cooperation as is reasonably requested by Parent or Merger Sub in connection with the transactions contemplated by this Agreement (arrangement of the “Debt Financing”), including its reasonable efforts to provide the following assistance: including:
(i) participating (and causing senior management and representativesof the Company, with appropriate seniority and expertise, of the Acquired Companies to participate) assist in preparation for and participate in a reasonable number of meetingsinvestor and lender meetings (including a reasonable and limited number of one-on-one meetings and calls that are requested in advance with or by the parties acting as lead arrangers or agents for, presentationsand prospective lenders of, the Debt Financing), presentations and due diligence sessions (including accounting due diligence sessions, drafting sessions and sessions ) in connection with the Debt Financing Sources at reasonable times and prospective lenders and otherwise reasonably cooperating with the marketing and due diligence efforts for any of the Debt Financinglocations mutually agreed (such agreement not to be unreasonably withheld, conditioned or delayed);
(ii) providing reasonable assistance to Parent, Merger Sub with the preparation by Parent and the Debt Financing Sources with the timely preparation of customary (A) rating agency presentationsoffering documents, private placement memoranda, prospectuses, bank information memoranda, confidential information syndication memoranda, lender and investor presentations and similar other customary marketing documents required in connection with or proper for the Debt Financing;
(iii) cooperating reasonably with the Financing or customarily used to arrange transactions similar Sources’ due diligence, to the Debt Financing extent customary and reasonably requested;
(iv) furnishing, or causing to be furnished to Parent, any financial or other pertinent information reasonably requested by companies Parent in connection with Parent’s preparation of a comparable size in a comparable industry as the Company; and (B) pro forma financial statements of the Company and forecasts its Subsidiaries required by the condition precedent set forth in paragraph 4 on Exhibit C of the Debt Commitment Letter (as in effect as of the Agreement Date) and such other financial and other pertinent information as may be reasonably requested by the Financing Sources to be included in any bank information memoranda, offering documents, private placement memoranda, offering memoranda prospectuses or other customary marketing materials, including by providing such financial and other pertinent information regarding the Company and its Subsidiaries and their respective businesses; provided that neither the Company nor any of its Subsidiaries or Representatives shall be required to prepare such pro forma financial statements of the Acquired Companies for one or more periods following the Closing Date, in each case based on financial information and data derived from the Acquired Company’s historical books and records, provided, however, that no member of the Acquired Companies will be required to provide any information or assistance with respect relating to (A) the preparation of proposed debt and equity capitalization that is required for such pro forma financial statements and forecasts of financing statements, including relating to the determination of the proposed aggregate amount of the Debt Financing, the information or assumed interest rates thereunder or the and fees and expenses relating thereto, or the determination of to such debt and equity capitalization; (B) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing; or (iiiC) furnishing Parentany information related to Parent or any of its Subsidiaries or any adjustments that are not directly related to the acquisition of the Company;
(A) assisting in the preparation, Merger Sub execution and delivery of definitive financing documents, including any credit agreement, notes, guarantee and collateral documents, pledge and security documents, customary closing certificates and documents and back-up therefor and for legal opinions in connection with the Debt Financing Sources (including executing and delivering a solvency certificate from the chief financial officer or treasurer (or other comparable officer) of the Company (in the form attached as promptly as practicable with financial Annex I attached to Exhibit C to the Debt Commitment Letter or otherwise in a form acceptable to Parent)) and other pertinent information regarding the Acquired Companies that is reasonably available to the Company customary documents as may reasonably be reasonably requested by Parent or the Debt Financing Sources to the extent that such information is of the type and form customarily included (including, in a bank confidential information memorandum in connection with the arrangement of financing similar to the Debt Financing or in rating agency presentationseach case, lender presentations or other customary marketing materials, (iv) providing customary authorization letters, confirmations and undertakings to the Debt Financing Sources authorizing the distribution of information to prospective lenders and containing a representation to the Debt Financing Sources that the information pertaining to the Acquired Companies contained in the any disclosure and marketing materials related to the Debt Financing (other than forecasts and similar prospective information) is complete and correct in all material respected and that the public side versions of such documents, if any, do not include material non-public information about the Company or its Subsidiaries or securities, (v) (A) assisting with the preparation and negotiation of definitive financing documentation and the schedules and exhibits thereto (including loan agreements, guarantees, collateral agreements, hedging arrangements, and customary officer’s and other closing certificates (including a solvency certificatethereto)) as may reasonably be requested, ; (B) facilitating the granting pledge of, grant of a security interest interests in and pledging obtain perfection of collateral, it being understood that such documents will not take effect until any liens on collateral in connection with the Closing Date, Debt Financing; and (C) cooperating obtaining any customary evidence of insurance required in satisfying connection with the conditions precedent set forth Debt Financing; provided that (I) none of the documents or certificates shall be executed and/or delivered except in connection with the Closing; (II) the effectiveness thereof shall be conditioned upon, or become operative as of or after, the occurrence of the Closing; and (III) no liability shall be imposed on the Company or any definitive agreements relating of its Subsidiaries or any of their respective officers or employees involved prior to the Debt Financing to Closing Date who are not continuing in such position after the extent the satisfaction thereof requires the cooperation or is in the control of the Acquired Companies, Closing Date;
(vi) promptly furnishing Parent, Merger Sub and the Debt Financing Sources with providing all documentation and other information about the Company and its Subsidiaries as is reasonably requested by any Debt Financing Source with respect to under applicable “know your customer” and anti-money laundering rules and regulations, regulations including the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into Law on October 26, 2001, as amended from time to time) and the Customer Due Diligence Requirements for Financial Institutions issued by the U.S. Department of Treasury Financial Crimes Enforcement Network under the Bank Secrecy Act (such rule published May 11, 2016 and effective May 11, 2018, as amended from time to time) and providing a certification regarding beneficial ownership required by 31 C.F.R. § 1010.230, in each case, at least three four (4) Business Days prior to the Closing Date that has been reasonably to the extent requested by Parent in writing, writing at least ten days nine (9) Business Days prior to the Closing Date, and ;
(vii) taking corporate actionsgiving any necessary notices, subject to allow for the occurrence payoff, discharge and termination in full at the Closing of all Indebtedness required to be repaid at the Closing and release of all Liens and guarantee obligations in connection therewith and cooperating in the replacement, backstop or cash collateralization of any outstanding letters of credit issued for the account of the ClosingCompany or any of its Subsidiaries;
(viii) cooperating with Parent and Parent’s efforts to obtain consents, necessary landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, surveys and title insurance (including providing reasonable access to Parent and its representatives to all owned or leased real property) as reasonably requested by Parent;
(ix) taking all corporate, limited liability company, partnership or other similar actions reasonably requested by Parent or any Financing Sources to permit the consummation of the Debt Financing.
(b) Nothing in this Section 6.20 will require the Acquired Companies ; provided that no such actions shall be required to (i) waive or amend any terms of this Agreement, pay any commitment fee or similar fee or agree to pay any other fees or reimburse any expenses or otherwise issue or provide any indemnities prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent; (ii) enter into, approve, modify or perform any definitive agreement or commitment or distribute any cash (except to the extent subject to concurrent reimbursement by Parent) that will be effective prior to the Closing Date; (iii) incur any liability or give any indemnities in connection with the Debt Financing that are effective prior to the Effective Time; (iv) take any action that, in the good faith determination of the Company, would unreasonably interfere with the conduct of the business of the Acquired Companies; (v) provide any information that is not reasonably available to the Company, (vi) prepare separate financial statements for any of the Acquired Companies to the extent not customarily prepared by the Acquired Companies and to the extent such preparation would be unduly burdensome or change any fiscal period; (vii) adopt any resolutions, execute any consents or otherwise take any corporate or similar action that will be effective prior to the Closing; or and
(viiix) provide any legal opinion. In addition, no action, liability or obligation cooperating in satisfying the conditions precedent to the funding of the Acquired Companies Debt Financing set forth in the Debt Commitment Letter or any definitive documentation relating the Debt Financing to the extent such condition requires the cooperation of, or is within the control of, the Company; provided that:
(A) in no event shall the Company or any of its Subsidiaries be required to provide any such cooperation to the extent it interferes unreasonably with the ongoing operations of the Company and its Subsidiaries;
(B) no obligation of the Company or any of its Subsidiaries or any of their respective Representatives on account of the Debt Financing shall be effective until the Closing Date;
(C) in no event shall the Company or any of its Subsidiaries be required to pay any commitment or other fee or incur any cost, expense or liability in connection with the Financing prior to the Closing Date (in each case, except to the extent the Company is entitled to receive reimbursement or indemnification therefor pursuant to the last paragraph in this Section 6.5(a)), or enter into any certificatedefinitive agreement, in connection with the Financing that is effective, prior to the Closing Date;
(D) nothing in this Section 6.5 shall require any action that would conflict with or violate any applicable Laws or result in, prior to the Closing Date, the material contravention of any note, bond, mortgage, indenture, contract, agreement, arrangementlease, license, Permit, franchise or other instrument or obligation to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or any of their properties is bound or affected on the Agreement Date;
(E) neither the Company or its Subsidiaries nor any Persons who is a director, officer or employee of the Company or its Subsidiaries shall be required to (x) pass resolutions or consents or (y) authorize, approve, execute or deliver any document or instrument relating Contract prior to the Debt Financing (other than customary authorization letters (including with respect to the presence or absence of material non-public information and the accuracy occurrence of the information contained Closing in the disclosure and marketing materials related to connection with the Debt Financing, except, in each case based on case, for the execution and delivery of such documents and Contracts that is conditioned upon, and not effective until, the consummation of the Closing (and which execution and delivery shall be authorized and approved exclusively by the post-Closing directors, managers or members of the applicable governing body of such Person);
(F) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to disclose or provide any information in connection with the Financing, the disclosure of which is subject to attorney-client privilege or could reasonably result in the disclosure of any trade secrets or competitively sensitive information not otherwise required to be provided under this Agreement;
(G) none of the Company or any of its Subsidiaries or any of their respective Representatives shall be required to prepare or deliver any pro forma financial information and data derived from or projections (without waiver of the Company’s historical books and recordsobligations of the Company set forth in clause (v) of this Section 6.5(a));
(H) will none of the Company or its Subsidiaries or any of their respective Representatives shall be effective until required to deliver any legal opinion in connection with the Effective Time, and Debt Financing;
(I) none of the Acquired Companies will not Company or its Subsidiaries or any of their respective Representatives shall be required to take any action pursuant that would cause the Company or any of its Subsidiaries to breach any certificaterepresentation, agreementwarranty, arrangement, document covenant or instrument agreement in this Agreement; and
(other than customary authorization lettersJ) that is not contingent on the occurrence none of the Closing Company or that must its Subsidiaries or any of their respective Representatives shall be effective prior required to the Effective Time. Nothing in this Section 6.20 will require (1) any officer, employee or Representative of the Acquired Companies to deliver any certificate or opinion or take any other action under this Section 6.20 that would reasonably be expected to cause any director, officer, manager or employee or stockholder of the Company or any of its Subsidiaries to incur personal liability. Parent shall, in the event the Closing shall not occur, (x) promptly following receipt of a written request therefor, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including (A) reasonable and documented attorneys’ fees and (B) reasonable and documented fees and expenses of the Company’s accounting firms engaged to assist in connection with the Financing, including performing additional requested procedures, reviewing any offering documents, participating in any meetings and providing any comfort letters) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries and Representatives contemplated by this Section 6.5(a) (it being understood that the reimbursement set forth in this paragraph shall not apply to, and the Company and its Subsidiaries shall be solely responsible for, (I) any fees payable to existing legal, financial or other advisors of the Company and its Subsidiaries with respect to services provided prior to the Agreement Date; (II) any ordinary course amounts payable to existing employees of or consultants to the Company, its Subsidiaries or any of their Affiliates with respect to services provided prior to the Closing; and (III) costs and expenses that would have been incurred by the Company or its Subsidiaries, as applicable, in connection with the Transactions notwithstanding the obligations under this Section 6.5(a), including, for the avoidance of doubt, the cost of any financial audits with respect to the periods ending on or prior to December 31, 2021) and (y) indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the arrangement of the Financing (including the performance of their respective obligations under this Section 6.5) and any information used in connection therewith, in each case other than to the extent any of the foregoing was suffered or incurred as a result in personal liability to such officer of (A) the fraud, bad faith, gross negligence or Representativewillful misconduct of, or a material breach of this Agreement by, the Company, any of its Subsidiaries or any of their respective Representatives or (B) information provided by or behalf of the Company, any of its Subsidiaries or any of their respective Representatives (collectively, with the Paying Agent Fees, the “Reimbursement Obligations”).
(cb) The Company hereby consents to the reasonable use of the Acquired Companies’ its logos solely in connection with the Debt Financing, ; provided that Parent and Merger Sub shall ensure that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage any of the Acquired Companies or the reputation or goodwill of any Acquired Company or are used in any other manner as approved by the Acquired Companies in their reasonable discretion.
(d) Promptly upon request by the Company, Parent will reimburse the Company for any reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Acquired Companies in connection with the cooperation of the Acquired Companies contemplated by Section 6.20(a). Parent shall indemnify and hold harmless the Acquired Companies and its Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments, penalties and amounts paid in settlement suffered or incurred by them in connection with any cooperation provided pursuant to this Section 6.20 or the provision of information utilized in connection therewith, except to the extent that any of the foregoing results from gross negligence, bad faith, willful misconduct or a material misstatement of the Company or any its Affiliates. ParentSubsidiaries or the Company’s obligations pursuant to the two preceding sentences are referred to collectively as the “Reimbursement Obligations”. Notwithstanding the foregoing, for the avoidance or any of doubt, the costs and expenses subject to the Reimbursement Obligations shall not include (x) costs and expenses incurred in connection with the preparation of financial statements that are its Subsidiaries’ reputation or would be prepared in the ordinary course of business irrespective of this Agreement, (y) any ordinary course amounts payable to employees of the Company or its Affiliates with respect to services provided prior to the Closing Date and (z) any other ordinary course amounts that would have been incurred in connection with the transactions contemplated hereby regardless of any debt financing established in connection herewith and regardless of the covenants set forth in this Section 6.20(d)goodwill.
Appears in 1 contract
Sources: Merger Agreement (Tufin Software Technologies Ltd.)
Cooperation with Debt Financing. (a) Prior to the Effective Time, each of the Acquired Companies shall Company will use its commercially reasonable best efforts to, and shall will use its commercially reasonable best efforts to cause each of its Subsidiaries and its and their respective officers, employees and other representatives with appropriate seniority and expertise Representatives to, provide do the following upon reasonable prior notice:
(i) providing the Parent and Merger Sub with such reasonable cooperation as may be reasonably requested by ▇▇▇▇▇▇ and Merger Sub, at Parent’s sole cost and expense, in connection with any debt financing arrangements of the Parent or Merger Sub to assist them in arranging the debt financing (if any) to be obtained by the Parent, Merger Sub or their respective Affiliates in connection with the transactions contemplated by this Agreement Merger (the “Debt Financing”), including its reasonable efforts to provide the following assistance: ;
(iii) participating (and causing senior management and representativesRepresentatives, with appropriate seniority and expertise, of the Acquired Companies Company to participate) in a reasonable number of meetingsmeetings and presentations with actual or prospective lenders, presentations, road shows and due diligence sessions, drafting sessions and sessions with the Debt Financing Sources and prospective lenders rating agencies, and otherwise reasonably cooperating with the marketing and due diligence efforts for any of the Debt Financing, ;
(iiiii) providing reasonable assistance to Parent, Merger Sub assisting Parent and the Debt Financing Sources with the timely preparation of customary (A) rating rating-agency presentations, bank information memoranda, confidential information memoranda, lender presentations and similar documents required in connection with or proper for the Debt Financing or customarily used to arrange transactions similar to the Debt Financing by companies of a comparable size in a comparable industry as the CompanyCompany and its Subsidiaries, taken as a whole; and (B) pro forma financial statements and forecasts of financial statements of the Acquired Companies Surviving Corporation for one or more periods following the Closing Date, in each case based on financial information and data derived from the Acquired Company’s historical books and records, ; provided, however, that no member of the Acquired Companies Company and its Subsidiaries will not be required to provide any information or assistance with respect to the preparation of pro forma financial statements and forecasts of financing statements, including statements relating to (i) the determination of the proposed aggregate amount of the Debt Financing, the interest rates thereunder or the fees and expenses relating thereto, or ; (ii) the determination of any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing; or (iii) any financial information related to Parent or any of its Subsidiaries or any adjustments that are not directly related to the acquisition of the Company;
(iv) assisting Parent in connection with the preparation, registration, execution and delivery (but in the case of execution and delivery, solely to the extent any such execution and delivery would only be effective on or after the Closing Date) of any pledge and security documents, mortgages, currency or interest hedging arrangements and other definitive financing documents and certificates as may be reasonably requested by Parent or the Debt Financing Sources (including using commercially reasonable efforts to obtain, to the extent applicable, consents of accountants for use of their reports in any materials relating to the Debt Financing as reasonably requested by Parent), obtaining insurance certificates and endorsements, and facilitating the delivery of all stock and other certificates representing equity interests in the Company and its Subsidiaries to the extent required in connection with the Debt Financing, and otherwise reasonably facilitating the pledging of collateral and the grant of security interests in respect of the Debt Financing, it being understood that such documents will not take effect until the Effective Time;
(v) furnishing the Parent, Merger Sub and the Debt Financing Sources Sources, as promptly as practicable with reasonably practical, with, to the extent customarily provided by companies of comparable size and comparable industry in transactions similar to the Debt Financing for a financing of the type being incurred, financial and other pertinent and customary information (and supplementing such information to the extent any such information contains any material misstatement of fact or omits to state a material fact necessary to make such information not misleading) regarding the Acquired Companies that is reasonably available to the Company and its Subsidiaries as may be reasonably requested by Parent or the Debt Financing Sources to the extent that such information is of the type and form customarily included in a bank confidential information memorandum in connection with the arrangement of financing similar to the Debt Financing or in rating agency presentations, lender presentations or other customary marketing materials;
(vi) cooperating with Parent to obtain customary and reasonable corporate and facilities ratings, consents, landlord waivers and estoppels, non-disturbance agreements, environmental assessments, non-imputation affidavits, legal opinions, surveys and title insurance as reasonably requested by Parent, including in connection with any sale-and-leaseback agreements or arrangements to be effected at or after the Closing;
(ivvii) reasonably facilitating the grant of security interests (and perfection thereof) in collateral or the reaffirmation of the pledge of collateral on or after the Effective Time, and obtaining and delivering any pay-off letters and other cooperation in connection with the repayment or other retirement of existing indebtedness required to be repaid at the Closing and the release and termination of any and all related liens on or prior to the Effective Time;
(viii) delivering notices of prepayment within the time periods required by the relevant agreements governing indebtedness and obtaining customary payoff letters, lien terminations and instruments of discharge to be delivered at the Closing, giving any other necessary notices, to allow for the payoff, discharge and termination in full at the Closing of all indebtedness of the Company and its Subsidiaries (or such portions or items thereof as Parent elects) to have repaid at the Closing; and cooperating in the replacement, backstop or cash collateralization of any outstanding letters of credit issued for the account of the Company or any of its Subsidiaries;
(ix) providing customary authorization letters, confirmations and undertakings to the Debt Financing Sources authorizing the distribution of information to prospective lenders or investors; provided, however, that all such materials have been previously identified to, and containing a representation provided to, the Company;
(x) facilitating and assisting in the preparation, execution and delivery of one or more credit agreements, guarantees, certificates and other definitive financing documents as may be reasonably requested by Parent (including furnishing all information relating to the Debt Financing Sources Company and its Subsidiaries and their respective businesses to be included in any schedules thereto or in any perfection certificates); provided that the information pertaining foregoing documentation shall be subject to the Acquired Companies contained in occurrence of the disclosure Closing Date and marketing materials related become effective no earlier than the Closing Date;
(xi) taking all corporate and other actions, subject to the occurrence of the Closing, reasonably requested by the Parent to (A) permit the consummation of the Debt Financing (other than forecasts and similar prospective information) is complete and correct in all material respected and that including distributing the public side versions proceeds of such documentsthe Debt Financing, if any, do not include material non-public information about obtained by any Subsidiary of the Company or its Subsidiaries or securities, (v) (A) assisting with to the preparation Surviving Corporation); and negotiation of definitive financing documentation and the schedules and exhibits thereto (including loan agreements, guarantees, collateral agreements, hedging arrangements, and customary officer’s and other closing certificates (including a solvency certificate)) as may reasonably be requested, (B) facilitating cause the granting direct borrowing or incurrence of a security interest all of the proceeds of the Debt Financing by the Surviving Corporation or any of its Subsidiaries concurrently with or immediately following the Effective Time;
(xii) promptly (but in and pledging of collateral, it being understood that such documents will not take effect until no event later than three Business Days prior to the Closing Date, and (C) cooperating in satisfying the conditions precedent set forth in any definitive agreements relating to the Debt Financing to the extent the satisfaction thereof requires the cooperation or is in the control of the Acquired Companies, (vi) promptly furnishing Parent, Merger Sub Parent and the Debt Financing Sources with all documentation and other information about the Company and its Subsidiaries as is reasonably requested by any Parent or the Debt Financing Source with respect Sources relating to applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, to the extent requested in each case, writing at least three ten Business Days prior to the Closing Date that has been reasonably requested by Parent in writing, at least ten days prior to the Closing Date, and (vii) taking corporate actions, subject to the occurrence of the Closing, necessary to permit the consummation of the Debt Financing.; and
(bxiii) Nothing cooperating in this Section 6.20 will require satisfying the Acquired Companies to (i) waive or amend any terms of this Agreement, pay any commitment fee or similar fee or agree to pay any other fees or reimburse any expenses or otherwise issue or provide any indemnities prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent; (ii) enter into, approve, modify or perform any definitive agreement or commitment or distribute any cash (except to the extent subject to concurrent reimbursement by Parent) that will be effective prior to the Closing Date; (iii) incur any liability or give any indemnities in connection with the Debt Financing that are effective prior to the Effective Time; (iv) take any action that, conditions precedent set forth in the good faith determination of the Company, would unreasonably interfere with the conduct of the business of the Acquired Companies; (v) provide any information that is not reasonably available to the Company, (vi) prepare separate financial statements for any of the Acquired Companies to the extent not customarily prepared by the Acquired Companies and to the extent such preparation would be unduly burdensome or change any fiscal period; (vii) adopt any resolutions, execute any consents or otherwise take any corporate or similar action that will be effective prior to the Closing; or (viii) provide any legal opinion. In addition, no action, liability or obligation of the Acquired Companies or any of its Representatives pursuant to any certificate, agreement, arrangement, document or instrument definitive agreements relating to the Debt Financing (other than customary authorization letters (including with respect to the presence extent satisfaction thereof requires the cooperation, or absence is within the control, of material non-public information and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing, in each case based on financial information and data derived from the Company’s historical books and records)) will be effective until the Effective Time, and the Acquired Companies will not be required to take any action pursuant to any certificate, agreement, arrangement, document or instrument (other than customary authorization letters) that is not contingent on the occurrence of the Closing or that must be effective prior to the Effective Time. Nothing in this Section 6.20 will require (1) any officer, employee or Representative of the Acquired Companies to deliver any certificate or opinion or take any other action under this Section 6.20 that would reasonably be expected to result in personal liability to such officer or Representative.
(c) The Company hereby consents to the reasonable use of the Acquired Companies’ logos in connection with the Debt Financing, provided that such logos are used in a manner that is not intended to or reasonably likely to harm or disparage any of the Acquired Companies or the reputation or goodwill of any Acquired Company or are used in any other manner as approved by the Acquired Companies in their reasonable discretion.
(d) Promptly upon request by the Company, Parent will reimburse the Company for any reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Acquired Companies in connection with the cooperation of the Acquired Companies contemplated by Section 6.20(a). Parent shall indemnify and hold harmless the Acquired Companies and its Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments, penalties and amounts paid in settlement suffered Subsidiaries or incurred by them in connection with any cooperation provided pursuant to this Section 6.20 or the provision of information utilized in connection therewith, except to the extent that any of the foregoing results from gross negligence, bad faith, willful misconduct or a material misstatement of the Company or its Affiliates. Parent’s obligations pursuant to the two preceding sentences are referred to collectively as the “Reimbursement Obligations”. Notwithstanding the foregoing, for the avoidance of doubt, the costs and expenses subject to the Reimbursement Obligations shall not include (x) costs and expenses incurred in connection with the preparation of financial statements that are or would be prepared in the ordinary course of business irrespective of this Agreement, (y) any ordinary course amounts payable to employees of the Company or its Affiliates with respect to services provided prior to the Closing Date and (z) any other ordinary course amounts that would have been incurred in connection with the transactions contemplated hereby regardless of any debt financing established in connection herewith and regardless of the covenants set forth in this Section 6.20(d)their respective Representatives.
Appears in 1 contract
Sources: Merger Agreement (Intricon Corp)
Cooperation with Debt Financing. (a) Prior to the Effective TimeClosing and subject to the delivery of reasonable and customary confidentiality undertakings towards or for the benefit of the Company, each of the Company shall, and shall cause the Acquired Companies shall use its reasonable best efforts and their respective Representatives to, and shall use reasonable best efforts to cause its respective officers, employees and other representatives reasonably cooperate with appropriate seniority and expertise to, provide cooperation the arrangement by Parent of the Debt Financing as may be reasonably requested by ▇▇▇▇▇▇ and Merger SubParent, at Parent’s sole cost and expense, in connection with any debt financing arrangements of Parent or Merger Sub in connection with the transactions contemplated by this Agreement (the “Debt Financing”), including its reasonable efforts to provide the following assistanceincluding: (i) participating (and causing senior management and representatives, with appropriate seniority and expertise, of the Acquired Companies to participate) participation in a reasonable number of meetings, presentations, due diligence sessions, drafting sessions and sessions with the Debt Financing Sources and prospective lenders and otherwise reasonably cooperating with the marketing and due diligence efforts for any of the Debt Financing, (ii) providing reasonable assistance to Parent, Merger Sub and the Debt Financing Sources with the timely preparation of customary (A) rating agency presentations, bank information memoranda, confidential information memoranda, lender presentations and similar documents required participating in connection with or proper for the Debt Financing or customarily used to arrange transactions similar to the Debt Financing by companies of a comparable size in a comparable industry as the Company; reasonable and (B) pro forma financial statements and forecasts of financial statements of the Acquired Companies for one or more periods following the Closing Datecustomary due diligence, in each case based on financial information and data derived from with or by the Acquired Company’s historical books and records, provided, however, that no member of the Acquired Companies will be required to provide Financing Sources (or prospective lenders in any information or assistance with respect to the preparation of pro forma financial statements and forecasts of financing statements, including relating to the determination of the proposed aggregate amount of the Debt Financing, the interest rates thereunder or the fees and expenses relating thereto, or the determination of any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing); (iiiii) furnishing Parent, Merger Sub making available to Parent and the Debt Financing Sources Sources, as promptly as practicable with possible after the date of this Agreement, financial and other pertinent information regarding the Company and Acquired Companies that as is reasonably available to the Company as may be reasonably requested by Parent or the Debt Financing Sources to the extent that such information is of the type and form customarily included in a bank confidential information memorandum customary in connection with debt financing for transactions of this type; (iii) furnishing to Parent and the arrangement Financing Sources, as promptly as possible after the date of financing similar this Agreement, the Required Information; (iv) assisting in obtaining customary accountants’ comfort letters and accountants’ consents with respect to the consolidated financial statements of the Company and its Subsidiaries from the auditors of the Company, as applicable, in form and substance reasonably satisfactory to the Financing Sources for use in connection with any Debt Financing; (v) assisting Parent and the Financing or Sources in the preparation of (A) customary syndication documents and materials (including assistance in creating usual and customary “public versions” of the foregoing), including a bank information memorandum and lender presentations and (B) materials for rating agency presentations, lender presentations or other customary marketing materials, (iv) and the Company providing customary authorization letters, confirmations and undertakings letters to the Debt Financing Sources authorizing the distribution of information to prospective lenders and lenders, containing a customary representation to the Debt Financing Sources that the information pertaining to the Acquired Companies contained in the disclosure and marketing materials related to the Debt Financing (other than forecasts and similar prospective information) is complete and correct in all material respected and that the public any public-side versions version of such documents, if any, do information does not include material non-public information, solely to the extent such information about is provided by the Company or its Subsidiaries or securities, (v) (A) assisting with the preparation and negotiation of definitive financing documentation and the schedules and exhibits thereto (including loan agreements, guarantees, collateral agreements, hedging arrangements, and customary officer’s and other closing certificates (including a solvency certificate)) as may reasonably be requested, (B) facilitating the granting of a security interest in and pledging of collateral, it being understood that all of the actions required under clauses (i) through (v) above will be performed by the Company in a prompt and timely manner in order to afford the Financing Sources a period (the “Marketing Period”) of at least twenty (20) consecutive Business Days commencing on or after the date that is the later of: (y) fifteen (15) Business Days after the date hereof and prior to the Closing Date and (z) the date of receipt of the information memorandum, to syndicate the Debt Financing; provided that November 27, 2015 shall not be considered a Business Day for the purposes of the Marketing Period and such Marketing Period shall end on or prior to December 18, 2015); (vi) executing and delivering as of (but not effective before) the Effective Time definitive financing documents will not take effect until and certificates or other documents to the extent reasonably requested by Parent and otherwise facilitating the granting or perfection of collateral to secure any Debt Financing, including without limitation delivery of certificates representing equity interests constituting collateral and obtaining customary 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 any debt of the Company or its Subsidiaries that Parent desires to payoff, discharge and terminate at Closing; (vii) furnishing to Parent and any Financing Sources promptly, and in any event at least 3 Business Days prior to the Closing Date, and (C) cooperating in satisfying the conditions precedent set forth in any definitive agreements relating to the Debt Financing to the extent the satisfaction thereof requires the cooperation or is in the control of the Acquired Companies, (vi) promptly furnishing Parent, Merger Sub and the Debt Financing Sources with all documentation and other information as has been reasonably requested in writing at least 10 business days prior to the Closing Date required by any Debt Financing Source with respect to regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT ActAct and the Israeli Prohibition on Money Laundering Law 5760-2000; (viii) ensuring that, in each case, at least three Business Days prior to the Closing Date that has been reasonably requested other than as agreed by Parent in writingand the Financing Sources, at least ten days prior to there are no competing issues, offerings, placements or arrangements of debt securities or commercial bank or other credit facilities by or on behalf of the Closing DateCompany or any of its Subsidiaries being offered, placed or arranged and (viiix) taking all corporate actions, subject to and only effective upon the occurrence of the Closing, necessary Effective Time reasonably requested by Parent to permit the consummation of the Debt Financing.
(b) Nothing Financing as promptly as practicable; provided, that the Company shall not be required to pay any commitment or other similar fee or incur any other liability in this Section 6.20 will require connection with such cooperation and Parent shall bear all expenses incurred by the Company, the Acquired Companies to (i) waive and their respective advisors, whether or amend not the Merger is consummated; and provided, further, that the effectiveness of any terms of this Agreement, pay any commitment fee documentation executed by the Company or similar fee or agree to pay any other fees or reimburse any expenses or otherwise issue or provide any indemnities prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent; (ii) enter into, approve, modify or perform any definitive agreement or commitment or distribute any cash (except to the extent subject to concurrent reimbursement by Parent) that will be effective prior to the Closing Date; (iii) incur any liability or give any indemnities in connection with the Debt Financing that are effective prior to the Effective Time; (iv) take any action that, in the good faith determination of the Company, would unreasonably interfere with the conduct of the business of the Acquired Companies; (v) provide any information that is not reasonably available to the Company, (vi) prepare separate financial statements for any of the Acquired Companies with respect thereto shall be subject to the extent not customarily prepared by the Acquired Companies and to the extent such preparation would be unduly burdensome or change any fiscal period; (vii) adopt any resolutions, execute any consents or otherwise take any corporate or similar action that will be effective prior to the Closing; or (viii) provide any legal opinion. In addition, no action, liability or obligation consummation of the Acquired Companies or any of its Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to the Debt Financing (other than customary authorization letters (including with respect to the presence or absence of material non-public information and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing, in each case based on financial information and data derived from the Company’s historical books and records)) will be effective until the Effective Time, and the Acquired Companies will not be required to take any action pursuant to any certificate, agreement, arrangement, document or instrument (other than customary authorization letters) that is not contingent on the occurrence of the Closing or that must be effective prior to the Effective TimeMerger. Nothing in this Section 6.20 will require (1) any officer, employee or Representative of the Acquired Companies to deliver any certificate or opinion or take any other action under this Section 6.20 that would reasonably be expected to result in personal liability to such officer or Representative.
(c) The Company hereby consents to the reasonable use of the Acquired Companiesits and its Subsidiaries’ logos in connection with the marketing of any Debt Financing, ; provided that such logos are used solely in a manner that is not intended to or to, and is not reasonably likely to harm or disparage the Company or any of the Acquired Companies its Subsidiaries or the reputation or goodwill of any Acquired Company or are used in any other manner as approved by the Acquired Companies in their reasonable discretion.
(d) Promptly upon request by the Company, Parent will reimburse the Company for any reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Acquired Companies in connection with the cooperation of the Acquired Companies contemplated by Section 6.20(a). Parent shall indemnify and hold harmless the Acquired Companies its Subsidiaries and its Representatives from and against any and all liabilitiesor their respective marks, lossesproducts, damagesservices, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments, penalties and amounts paid in settlement suffered offerings or incurred by them in connection with any cooperation provided pursuant to this Section 6.20 or the provision of information utilized in connection therewith, except to the extent that any of the foregoing results from gross negligence, bad faith, willful misconduct or a material misstatement of the Company or its Affiliates. Parent’s obligations pursuant to the two preceding sentences are referred to collectively as the “Reimbursement Obligations”. Notwithstanding the foregoing, for the avoidance of doubt, the costs and expenses subject to the Reimbursement Obligations shall not include (x) costs and expenses incurred in connection with the preparation of financial statements that are or would be prepared in the ordinary course of business irrespective of this Agreement, (y) any ordinary course amounts payable to employees of the Company or its Affiliates with respect to services provided prior to the Closing Date and (z) any other ordinary course amounts that would have been incurred in connection with the transactions contemplated hereby regardless of any debt financing established in connection herewith and regardless of the covenants set forth in this Section 6.20(d)Intellectual Property Rights.
Appears in 1 contract
Cooperation with Debt Financing. (a) Prior to the Effective TimeClosing and subject to the delivery of reasonable and customary confidentiality undertakings towards or for the benefit of the Company, each of the Company shall, and shall cause the Acquired Companies shall use its reasonable best efforts and their respective Representatives to, and shall use reasonable best efforts to cause its respective officers, employees and other representatives reasonably cooperate with appropriate seniority and expertise to, provide cooperation the arrangement by Parent of the Debt Financing as may be reasonably requested by ▇▇▇▇▇▇ and Merger SubParent, at Parent’s sole cost and expense, in connection with any debt financing arrangements of Parent or Merger Sub in connection with the transactions contemplated by this Agreement (the “Debt Financing”), including its reasonable efforts to provide the following assistanceincluding: (i) participating (and causing senior management and representatives, with appropriate seniority and expertise, of the Acquired Companies to participate) participation in a reasonable number of meetings, presentations, due diligence sessions, drafting sessions and sessions with the Debt Financing Sources and prospective lenders and otherwise reasonably cooperating with the marketing and due diligence efforts for any of the Debt Financing, (ii) providing reasonable assistance to Parent, Merger Sub and the Debt Financing Sources with the timely preparation of customary (A) rating agency presentations, bank information memoranda, confidential information memoranda, lender presentations and similar documents required participating in connection with or proper for the Debt Financing or customarily used to arrange transactions similar to the Debt Financing by companies of a comparable size in a comparable industry as the Company; reasonable and (B) pro forma financial statements and forecasts of financial statements of the Acquired Companies for one or more periods following the Closing Datecustomary due diligence, in each case based on financial information and data derived from with or by the Acquired Company’s historical books and records, provided, however, that no member of the Acquired Companies will be required to provide Financing Sources (or prospective lenders in any information or assistance with respect to the preparation of pro forma financial statements and forecasts of financing statements, including relating to the determination of the proposed aggregate amount of the Debt Financing, the interest rates thereunder or the fees and expenses relating thereto, or the determination of any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing); (iiiii) furnishing Parent, Merger Sub making available to Parent and the Debt Financing Sources Sources, as promptly as practicable with possible after the date of this Agreement, financial and other pertinent information regarding the Company and Acquired Companies that as is reasonably available to the Company as may be reasonably requested by Parent or the Debt Financing Sources to the extent that such information is of the type and form customarily included in a bank confidential information memorandum customary in connection with debt financing for transactions of this type; (iii) furnishing to Parent and the arrangement Financing Sources, as promptly as possible after the date of financing similar this Agreement, the Required Information; (iv) assisting in obtaining customary accountants’ comfort letters and accountants’ consents with respect to the consolidated financial statements of the Company and its Subsidiaries from the auditors of the Company, as applicable, in form and substance reasonably satisfactory to the Financing Sources for use in connection with any Debt Financing; (v) assisting Parent and the Financing or Sources in the preparation of (A) customary syndication documents and materials (including assistance in creating usual and customary “public versions” of the foregoing), including a bank information memorandum and lender presentations and (B) materials for rating agency presentations, lender presentations or other customary marketing materials, (iv) and the Company providing customary authorization letters, confirmations and undertakings letters to the Debt Financing Sources authorizing the distribution of information to prospective lenders and lenders, containing a customary representation to the Debt Financing Sources that the information pertaining to the Acquired Companies contained in the disclosure and marketing materials related to the Debt Financing (other than forecasts and similar prospective information) is complete and correct in all material respected and that the public any public-side versions version of such documents, if any, do information does not include material non-public information, solely to the extent such information about is provided by the Company or its Subsidiaries or securities, (it being understood and all of the actions required under clauses (i) through (v) above will be performed by the Company in a prompt and timely manner in order to afford the Financing Sources a period (Athe "Marketing Period") assisting with of at least twenty (20) consecutive Business Days commencing on or after the preparation date that is the later of (y) fifteen (15) Business Days after the date hereof and negotiation prior to the Closing Date and (z) the date of receipt of the information memorandum to syndicate the Debt Financing; provided that November 27, 2015 shall not be considered a Business Day for the purposes of the Marketing Period and such Marketing Period shall end on or prior to December 18, 2015); (vi) executing and delivering as of (but not effective before) the Effective Time definitive financing documentation documents and certificates or other documents to the schedules extent reasonably requested by Parent and exhibits thereto (including loan agreements, guarantees, collateral agreements, hedging arrangements, and customary officer’s and other closing certificates (including a solvency certificate)) as may reasonably be requested, (B) otherwise facilitating the granting or perfection of a security interest collateral to secure any Debt Financing, including without limitation delivery of certificates representing equity interests constituting collateral and obtaining customary 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 any debt of the Company or its Subsidiaries that Parent desires to payoff, discharge and pledging of collateralterminate at Closing; (vii) furnishing to Parent and any Financing Sources promptly, it being understood that such documents will not take effect until and in any event at least 3 Business Days prior to the Closing Date, and (C) cooperating in satisfying the conditions precedent set forth in any definitive agreements relating to the Debt Financing to the extent the satisfaction thereof requires the cooperation or is in the control of the Acquired Companies, (vi) promptly furnishing Parent, Merger Sub and the Debt Financing Sources with all documentation and other information as has been reasonably requested in writing at least 10 business days prior to the Closing Date required by any Debt Financing Source with respect to regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT ActAct and the Israeli Prohibition on Money Laundering Law 5760-2000; (viii) ensuring that, in each case, at least three Business Days prior to the Closing Date that has been reasonably requested other than as agreed by Parent in writingand the Financing Sources, at least ten days prior to there are no competing issues, offerings, placements or arrangements of debt securities or commercial bank or other credit facilities by or on behalf of the Closing DateCompany or any of its Subsidiaries being offered, placed or arranged and (viiix) taking all corporate actions, subject to and only effective upon the occurrence of the Closing, necessary Effective Time reasonably requested by Parent to permit the consummation of the Debt Financing.
(b) Nothing Financing as promptly as practicable; provided, that the Company shall not be required to pay any commitment or other similar fee or incur any other liability in this Section 6.20 will require connection with such cooperation and Parent shall bear all expenses incurred by the Company, the Acquired Companies to (i) waive and their respective advisors, whether or amend not the Merger is consummated; and provided, further, that the effectiveness of any terms of this Agreement, pay any commitment fee documentation executed by the Company or similar fee or agree to pay any other fees or reimburse any expenses or otherwise issue or provide any indemnities prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent; (ii) enter into, approve, modify or perform any definitive agreement or commitment or distribute any cash (except to the extent subject to concurrent reimbursement by Parent) that will be effective prior to the Closing Date; (iii) incur any liability or give any indemnities in connection with the Debt Financing that are effective prior to the Effective Time; (iv) take any action that, in the good faith determination of the Company, would unreasonably interfere with the conduct of the business of the Acquired Companies; (v) provide any information that is not reasonably available to the Company, (vi) prepare separate financial statements for any of the Acquired Companies with respect thereto shall be subject to the extent not customarily prepared by the Acquired Companies and to the extent such preparation would be unduly burdensome or change any fiscal period; (vii) adopt any resolutions, execute any consents or otherwise take any corporate or similar action that will be effective prior to the Closing; or (viii) provide any legal opinion. In addition, no action, liability or obligation consummation of the Acquired Companies or any of its Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to the Debt Financing (other than customary authorization letters (including with respect to the presence or absence of material non-public information and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing, in each case based on financial information and data derived from the Company’s historical books and records)) will be effective until the Effective Time, and the Acquired Companies will not be required to take any action pursuant to any certificate, agreement, arrangement, document or instrument (other than customary authorization letters) that is not contingent on the occurrence of the Closing or that must be effective prior to the Effective TimeMerger. Nothing in this Section 6.20 will require (1) any officer, employee or Representative of the Acquired Companies to deliver any certificate or opinion or take any other action under this Section 6.20 that would reasonably be expected to result in personal liability to such officer or Representative.
(c) The Company hereby consents to the reasonable use of the Acquired Companiesits and its Subsidiaries’ logos in connection with the marketing of any Debt Financing, ; provided that such logos are used solely in a manner that is not intended to or to, and is not reasonably likely to harm or disparage the Company or any of the Acquired Companies its Subsidiaries or the reputation or goodwill of any Acquired Company or are used in any other manner as approved by the Acquired Companies in their reasonable discretion.
(d) Promptly upon request by the Company, Parent will reimburse the Company for any reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Acquired Companies in connection with the cooperation of the Acquired Companies contemplated by Section 6.20(a). Parent shall indemnify and hold harmless the Acquired Companies its Subsidiaries and its Representatives from and against any and all liabilitiesor their respective marks, lossesproducts, damagesservices, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments, penalties and amounts paid in settlement suffered offerings or incurred by them in connection with any cooperation provided pursuant to this Section 6.20 or the provision of information utilized in connection therewith, except to the extent that any of the foregoing results from gross negligence, bad faith, willful misconduct or a material misstatement of the Company or its Affiliates. Parent’s obligations pursuant to the two preceding sentences are referred to collectively as the “Reimbursement Obligations”. Notwithstanding the foregoing, for the avoidance of doubt, the costs and expenses subject to the Reimbursement Obligations shall not include (x) costs and expenses incurred in connection with the preparation of financial statements that are or would be prepared in the ordinary course of business irrespective of this Agreement, (y) any ordinary course amounts payable to employees of the Company or its Affiliates with respect to services provided prior to the Closing Date and (z) any other ordinary course amounts that would have been incurred in connection with the transactions contemplated hereby regardless of any debt financing established in connection herewith and regardless of the covenants set forth in this Section 6.20(d)Intellectual Property Rights.
Appears in 1 contract
Cooperation with Debt Financing. (a) Prior to Before the Effective TimeClosing Date, each of the Acquired Companies Company shall use its reasonable best efforts toto provide, and shall to cause its Subsidiaries to use their reasonable best efforts to cause its respective officersprovide, employees to Parent and other representatives Merger Sub, cooperation as is customary for financings of the type contemplated in the Financing Letters and as reasonably requested by Parent in connection with appropriate seniority and expertise assisting them in their arrangement of the Financing, including to, provide cooperation reasonably upon Parent’s written request:
(i) [reserved];
(ii) assist in preparation for and participate in a reasonable number of investor and lender meetings (including a reasonable and limited number of one-on-one meetings and calls that are requested in advance with or by the parties acting as lead arrangers or agents for, and prospective lenders of, the Financing), presentations, road shows, due diligence sessions (including accounting due diligence sessions), drafting sessions and sessions with rating agencies in connection with the Financing at reasonable times and locations mutually agreed, and assist Parent in obtaining ratings in connection with the Financing;
(iii) assist Parent with the preparation by ▇▇▇▇▇▇ and Merger Sub, at Parent’s sole cost and expense, in connection with any debt financing arrangements of Parent or Merger Sub in connection with the transactions contemplated by this Agreement (the “Debt Financing”), including its reasonable efforts to provide the following assistance: (i) participating (and causing senior management and representatives, with appropriate seniority and expertise, of the Acquired Companies to participate) in a reasonable number of meetings, presentations, due diligence sessions, drafting sessions and sessions with the Debt Financing Sources and prospective lenders and otherwise reasonably cooperating with the marketing and due diligence efforts of materials for any of the Debt Financing, (ii) providing reasonable assistance to Parent, Merger Sub and the Debt Financing Sources with the timely preparation of customary (A) rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda, confidential information memoranda, lender presentations memoranda and similar marketing documents required in connection with or proper for the Debt Financing, including the execution and delivery of customary representation letters in connection with bank information memoranda;
(iv) cooperate reasonably with the Financing or customarily used to arrange transactions similar Sources’ due diligence, to the Debt Financing by companies extent customary and reasonably requested;
(v) assist Parent in connection with Parent’s preparation of a comparable size in a comparable industry as the Company; and (B) pro forma financial statements and forecasts of financial statements of the Acquired Companies for one or more periods following the Closing Date, in each case based on financial information Company and data derived from the Acquired Company’s historical books and records, provided, however, that no member its Subsidiaries of the Acquired Companies will type necessary or reasonably requested by the Financing Sources to be included in any bank information memoranda, offering documents, private placement memoranda, offering memoranda prospectuses or other customary marketing materials, including by providing such financial and other pertinent information regarding the Company and its Subsidiaries and their respective businesses; provided that neither the Company nor any of its Subsidiaries or Representatives shall be required to provide any information or assistance with respect to relating to: (A) the preparation of proposed debt and equity capitalization that is required for such pro forma financial statements and forecasts of financing statements, including relating to the determination of the proposed aggregate amount of the Debt Financing, the information or assumed interest rates thereunder or the and fees and expenses relating thereto, or the determination of to such debt and equity capitalization; (B) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing; or (iiiC) furnishing Parent, Merger Sub and the Debt Financing Sources as promptly as practicable with financial and other pertinent any information regarding the Acquired Companies related to Parent or any of its Subsidiaries or any adjustments that is reasonably available are not directly related to the Company acquisition of the Company; and
(vi) execute and deliver as of (but not before) the Closing any pledge and security documents, other definitive financing documents, or other certificates or documents as may be reasonably requested by Parent and otherwise reasonably facilitate the pledging of collateral as of (but not before) the Closing; provided that: (A) none of the documents or certificates shall be executed and/or delivered except in connection with the Closing; (B) the effectiveness thereof shall be conditioned upon, or become operative after, the occurrence of the Closing; and (C) no liability shall be imposed on the Company or any of its Subsidiaries or any of their respective officers or employees involved before the Closing Date; provided that:
(A) in no event shall the Company or any of its Subsidiaries be required to provide any such cooperation to the extent it interferes unreasonably with the ongoing operations of the Company and its Subsidiaries;
(B) no obligation of the Company or any of its Subsidiaries or any of their respective Representatives on account of the Debt Financing Sources shall be effective until the Effective Time (excluding in connection with any authorization letters delivered by the Company in connection with the Debt Financing);
(C) in no event shall the Company or any of its Subsidiaries be required to pay any commitment or other fee, enter into any definitive agreement or agree to provide any indemnity in connection with the Financing before the Effective Time;
(D) nothing in this Section 6.6 shall require any action that would materially conflict with or violate the Company’s or any of its Subsidiaries’ organizational documents or any Laws or result in, before the Effective Time, the material contravention of any Material Contract to which the Company or its Subsidiaries is a party;
(E) neither the Company or its Subsidiaries nor any Persons who is a director, officer or employee of the Company or its Subsidiaries shall be required to: (1) pass resolutions or consents (except those that are subject to the occurrence of the Closing passed by directors or officers continuing in their positions following the Closing); or (2) execute any document (excluding the authorization letters referred to in clause (B) above and the representation letters referred to in clause (iii) above) or Contract that will become effective before the occurrence of the Closing in connection with the Financing;
(F) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to disclose or provide any information in connection with the Financing, the disclosure of which, in the reasonable judgment of the Company, is subject to attorney-client privilege or would result in the disclosure of any trade secrets or the violation of any confidentiality obligation; provided that the Company or such Subsidiary shall use reasonable best efforts to provide an alternative means of disclosing or providing such information, and in the case of any confidentiality obligation, Company shall, to the extent that permitted by such confidentiality obligations, notify Parent if any such information that Parent, Merger Sub or any Financing Source has specifically identified and requested is being withheld as a result of any such obligation of confidentiality;
(G) none of the type and form customarily included Company or its Subsidiaries or any of their respective Representatives shall be required to prepare or deliver: (1) any financial information in a bank confidential form not customarily prepared by the Company or its Subsidiaries in the ordinary course of their business; (2) any financial information memorandum with respect to a fiscal period that has not yet ended; or (3) any pro forma financial information or projections (in each case, without waiver of the obligations of the Company set forth in clauses (i), (v) and (vi) above);
(H) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to deliver any legal opinion in connection with the Financing;
(I) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to take any action that would cause the Company or any of its Subsidiaries to breach any representation, warranty, covenant or agreement in this Agreement; and
(J) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to take any action that would cause any director, officer or employee or shareholder of the Company or any of its Subsidiaries to incur personal liability.
(b) Parent shall, if the Closing shall not occur: (x) promptly, upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including (A) reasonable and documented out-of-pocket attorneys’ fees and (B) reasonable and documented out-of-pocket fees and expenses of the Company’s accounting firms engaged to assist in connection with the Financing, including performing additional requested procedures, reviewing any offering documents, participating in any meetings and providing any comfort letters) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries and Representatives contemplated by this Section 6.6(b) (the Parties understanding that the reimbursement set forth in this paragraph shall not apply to any fees, costs and expenses incurred by, or on behalf of, the Company in connection with its ordinary course financial reporting requirements); and (y) indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the arrangement of financing similar to the Debt Financing or in rating agency presentations, lender presentations or other customary marketing materials, (iv) providing customary authorization letters, confirmations and undertakings to the Debt Financing Sources authorizing the distribution of information to prospective lenders and containing a representation to the Debt Financing Sources that the information pertaining to the Acquired Companies contained in the disclosure and marketing materials related to the Debt Financing (including the performance of their respective obligations under this Section 6.6) and any information used in connection therewith, in each case other than forecasts and similar prospective information) is complete and correct in all material respected and that the public side versions of such documents, if any, do not include material non-public information about the Company or its Subsidiaries or securities, (v) (A) assisting with the preparation and negotiation of definitive financing documentation and the schedules and exhibits thereto (including loan agreements, guarantees, collateral agreements, hedging arrangements, and customary officer’s and other closing certificates (including a solvency certificate)) as may reasonably be requested, (B) facilitating the granting of a security interest in and pledging of collateral, it being understood that such documents will not take effect until the Closing Date, and (C) cooperating in satisfying the conditions precedent set forth in any definitive agreements relating to the Debt Financing to the extent the satisfaction thereof requires the cooperation or is in the control of the Acquired Companies, (vi) promptly furnishing Parent, Merger Sub and the Debt Financing Sources with all documentation and other information reasonably requested by any Debt Financing Source with respect to “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, in each case, at least three Business Days prior to the Closing Date that has been reasonably requested by Parent in writing, at least ten days prior to the Closing Date, and (vii) taking corporate actions, subject to the occurrence of the Closing, necessary to permit the consummation of the Debt Financing.
(b) Nothing in this Section 6.20 will require the Acquired Companies to (i) waive or amend any terms of this Agreement, pay any commitment fee or similar fee or agree to pay any other fees or reimburse any expenses or otherwise issue or provide any indemnities prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent; (ii) enter into, approve, modify or perform any definitive agreement or commitment or distribute any cash (except to the extent subject to concurrent reimbursement by Parent) that will be effective prior to the Closing Date; (iii) incur any liability or give any indemnities in connection with the Debt Financing that are effective prior to the Effective Time; (iv) take any action that, in the good faith determination of the Company, would unreasonably interfere with the conduct of the business of the Acquired Companies; (v) provide any information that is not reasonably available to the Company, (vi) prepare separate financial statements for any of the Acquired Companies to the extent not customarily prepared by the Acquired Companies and to the extent such preparation would be unduly burdensome foregoing was suffered or change any fiscal period; (vii) adopt any resolutions, execute any consents or otherwise take any corporate or similar action that will be effective prior to the Closing; or (viii) provide any legal opinion. In addition, no action, liability or obligation incurred as a result of the Acquired Companies bad faith, gross negligence or willful misconduct of the Company or any of its Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to Subsidiaries (the Debt Financing (other than customary authorization letters (including with respect to the presence or absence of material non-public information and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing, in each case based on financial information and data derived from the Company’s historical books and records“Reimbursement Obligations”)) will be effective until the Effective Time, and the Acquired Companies will not be required to take any action pursuant to any certificate, agreement, arrangement, document or instrument (other than customary authorization letters) that is not contingent on the occurrence of the Closing or that must be effective prior to the Effective Time. Nothing in this Section 6.20 will require (1) any officer, employee or Representative of the Acquired Companies to deliver any certificate or opinion or take any other action under this Section 6.20 that would reasonably be expected to result in personal liability to such officer or Representative.
(c) The Company hereby consents to the reasonable use of the Acquired Companies’ its logos solely in connection with the Debt Financing, ; provided that Parent and Merger Sub shall ensure that such logos are used solely: (i) in a manner that is not intended to or reasonably likely to harm or disparage any the Company or the Company’s reputation or goodwill; (ii) in connection with a description of the Acquired Companies Company, its business and products or the reputation or goodwill of any Acquired Company or are used Merger; and (iii) in any other a manner as approved by that will comply with the Acquired Companies in their reasonable discretionCompany’s usage requirements to the extent made available to Parent before the Agreement Date.
(d) Promptly upon request by ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Sub acknowledge and agree that the Companyobtaining of the Financing, or any Alternative Debt Financing, is not a condition to Closing.
(e) In no event will any Guarantor, Parent, Merger Sub or any of their respective Affiliates (that for this purpose will be deemed to include each direct investor in Parent will reimburse or Merger Sub and the Financing Sources or potential Financing Sources of Parent, Merger Sub and such investors) enter into any Contract: (i) awarding any agent, broker, investment banker or financial advisor any financial advisory role on an exclusive basis; or (ii) prohibiting or seeking to prohibit any bank, investment bank or other potential provider of debt financing from providing or seeking to provide debt financing or financial advisory services to any Person, in each case in connection with a transaction relating to the Company for any reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Acquired Companies Group or in connection with the cooperation of Merger.
(f) (i) As soon as reasonably practicable, but in any event before the Acquired Companies contemplated by Section 6.20(a). Closing Date, the Company shall, and shall cause its Subsidiaries to, as applicable, furnish Parent shall indemnify and hold harmless Merger Sub all financial statements, financial data, audit reports and other financial information regarding the Acquired Companies Company and its Representatives from Subsidiaries required to be delivered under the Debt Commitment Letter, including, without limitation, the financial statements described in paragraph 5 of Exhibit C to the Debt Commitment Letter and against any and all liabilities, losses, damages, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments, penalties and amounts paid in settlement suffered or incurred by them in connection with any cooperation provided pursuant to this Section 6.20 or ii) at least four (4) Business Days before the provision of information utilized in connection therewith, except Closing Date to the extent that any of requested in writing at least eight (8) Business Days before the foregoing results from gross negligenceClosing Date, bad faith, willful misconduct or a material misstatement of documentation and other information about the Company or and its Affiliates. Parent’s obligations pursuant Subsidiaries as is required under applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act described in paragraph 7 of Exhibit C to the two preceding sentences are referred to collectively as the “Reimbursement Obligations”. Notwithstanding the foregoing, for the avoidance of doubt, the costs and expenses subject to the Reimbursement Obligations shall not include (x) costs and expenses incurred in connection with the preparation of financial statements that are or would be prepared in the ordinary course of business irrespective of this Agreement, (y) any ordinary course amounts payable to employees of the Company or its Affiliates with respect to services provided prior to the Closing Date and (z) any other ordinary course amounts that would have been incurred in connection with the transactions contemplated hereby regardless of any debt financing established in connection herewith and regardless of the covenants set forth in this Section 6.20(d)Debt Commitment Letter.
Appears in 1 contract
Sources: Merger Agreement
Cooperation with Debt Financing. (a) Prior to During the Effective TimeInterim Period, each of the Acquired Companies shall Company will use its commercially reasonable best efforts to, and shall will use commercially reasonable best efforts to cause each of its Subsidiaries and its and their respective officers, employees and other representatives with appropriate seniority and expertise Representatives to, provide cooperation reasonably requested by ▇▇▇▇▇▇ and Merger Sub, at Parent’s sole cost and expense, in connection with any debt financing arrangements of Parent or Merger Sub in connection with do the transactions contemplated by this Agreement (the “Debt Financing”), including its reasonable efforts to provide the following assistance: following:
(i) participating participate (and causing cause senior management and representativesRepresentatives, with appropriate seniority and expertise, of the Acquired Companies Company to participate) in a reasonable number of meetingsmeetings and presentations with actual or prospective lenders, presentations, road shows and due diligence sessions, drafting sessions and sessions (upon reasonable request) with rating agencies to the extent customary for the Debt Financing Sources and prospective lenders and otherwise reasonably cooperating with the marketing and due diligence efforts for any of contemplated by the Debt Financing, Commitment Letter at times and locations (which may include telephonic or video calls) to be mutually agreed upon reasonable advance notice and during normal business hours;
(ii) providing [Reserved];
(iii) provide reasonable and customary assistance to Parent, Merger Sub Parent and the Debt Financing Sources in connection with the timely preparation of customary (A) rating agency presentations, bank information memoranda, confidential information memoranda, lender presentations and similar documents required in connection with or proper for the Debt Financing or customarily used to arrange transactions similar to the Debt Financing by companies of a comparable size in a comparable industry as the Company; and (B) pro forma financial statements and forecasts of financial statements of the Acquired Companies Surviving Corporation for one (1) or more periods following the Closing Date, in each case case, based on financial information and data derived from the Acquired Company’s historical books and records, ; provided, however, that no member of the Acquired Companies Company Group will be required to provide any information or assistance with respect to the preparation of pro forma financial statements and forecasts of financing statements, including statements relating to (I) the determination of the proposed aggregate amount of the Debt Financing, the interest rates thereunder or the fees and expenses relating thereto, or ; (II) the determination of any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing; or (iiiIII) furnishing Parentany financial information related to Parent or any of its Subsidiaries or any adjustments that are not directly related to the acquisition of the Company;
(iv) assisting Parent in connection with the preparation and, Merger Sub subject to the occurrence of the Effective Time, registration, execution and delivery (but in the Debt Financing Sources as promptly as practicable with financial case of execution and delivery, solely to the extent any such execution and delivery would only be effective on or after the Closing Date) of any pledge and security documents, mortgages, currency or interest hedging arrangements and other pertinent information regarding the Acquired Companies that is reasonably available to the Company definitive financing documents and certificates as may be reasonably requested by Parent or the Financing Sources, obtaining insurance certificates and endorsements, and facilitating the delivery of all stock and other certificates representing equity interests in the Company and its Subsidiaries to the extent required in connection with the Debt Financing, and otherwise reasonably facilitating the pledging of collateral and the granting of security interests in respect of the Debt Financing, it being understood that such documents will not take effect until the Effective Time;
(v) furnishing Parent, Merger Sub and Financing Sources as promptly as reasonably practicable, with regard to the extent customarily provided by companies of comparable size and comparable industry in transactions similar to the Debt Financing for a financing type being incurred, financial and other pertinent and customary information (and supplementing such information to the extent any such information contains any material misstatement of fact or omits to state a material fact necessary to make such information not misleading) regarding the Company Group as may be reasonably requested by Parent, Merger Sub or the Financing Sources to the extent that such information is of the type and form customarily included in a bank confidential information memorandum in connection with the arrangement of financing similar to the Debt Financing or in rating agency presentations, lender presentations or other customary marketing materials;
(vi) [Reserved];
(vii) reasonably facilitating the granting of security interests (and perfection thereof) in collateral or the reaffirmation of the pledge of collateral on or after the Closing Date, and obtaining and delivering any pay-off letters and other cooperation in connection with the repayment or other retirement of existing indebtedness required to be repaid at the Closing and the release and termination of any and all related Liens on or prior to the Closing Date;
(ivviii) delivering notices of prepayment within the time periods required by the relevant agreements governing indebtedness and obtaining customary payoff letters, Lien terminations and instruments of discharge to be delivered at the Closing, giving any other necessary notices, to allow for the payoff, discharge and termination in full at the Closing of all indebtedness required to be repaid at the Closing and release of all Liens in connection therewith; and cooperating in the replacement, backstop or cash collateralization of any outstanding letters of credit issued for the account of any Company Group Member;
(ix) providing customary authorization lettersletters required for the syndication of the Debt Financing;
(x) facilitating and assisting in the preparation, confirmations execution and undertakings delivery of one or more credit agreements, guarantees, certificates (including a customary solvency certificate) and other definitive financing documents as may be reasonably requested by Parent (including furnishing all information relating to the Company and its Subsidiaries and their respective businesses to be included in any schedules thereto or in any perfection certificates); provided that the foregoing documentation shall be subject to the occurrence of the Closing Date and become effective no earlier than the Closing Date;
(xi) [Reserved];
(xii) taking all corporate and other organizational actions, subject to the occurrence of the Closing, reasonably requested by Parent or Merger Sub to (A) permit the consummation of the Debt Financing Sources authorizing (including distributing the distribution proceeds of information the Debt Financing, if any, obtained by any Subsidiary of the Company to prospective lenders the Surviving Corporation); and containing a representation to (B) cause the direct borrowing or incurrence of all of the proceeds of the Debt Financing Sources that by the information pertaining to Surviving Corporation or any of its Subsidiaries concurrently with or immediately following the Acquired Companies contained Effective Time, in each case of clauses (A) and (B), including, facilitating the disclosure execution and marketing materials delivery at the Closing of definitive documents reasonably related to the Debt Financing (other than forecasts and similar prospective information) is complete and correct in all material respected and that the public side versions of such documents, if anycollectively, do not include material non-public information about the Company or its Subsidiaries or securities“Debt Documents”) on the terms contemplated by the Debt Commitment Letter, (v) (A) assisting in connection with the preparation and negotiation authorization of definitive financing documentation the Debt Financing and the schedules Debt Documents and exhibits thereto the execution and delivery of the Debt Documents in anticipation of the Closing;
(including loan agreements, guarantees, collateral agreements, hedging arrangements, and customary officer’s and other closing certificates xiii) promptly furnishing (including a solvency certificate)but in no event later than three (3) as may reasonably be requested, (B) facilitating the granting of a security interest in and pledging of collateral, it being understood that such documents will not take effect until Business Days prior to the Closing Date, and (C) cooperating in satisfying the conditions precedent set forth in any definitive agreements relating to the Debt Financing to the extent the satisfaction thereof requires the cooperation or is in the control of the Acquired Companies, (vi) promptly furnishing Parent, Merger Sub and the Debt Financing Sources with all documentation and other information about the Company Group as is reasonably requested by any Debt Parent, Merger Sub or the Financing Source with respect Sources relating to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into Law on October 26, 2001), and a certification regarding beneficial ownership required by 31 C.F.R. § 1010.230, in each case, at least three five (5) Business Days prior to the Closing Date that has been reasonably requested by Parent in writing, at least ten days prior to the Closing Date, and (vii) taking corporate actions, subject to the occurrence of the Closing, necessary to permit the consummation of the Debt Financing.
(b) Nothing in this Section 6.20 will require the Acquired Companies to (i) waive or amend any terms of this Agreement, pay any commitment fee or similar fee or agree to pay any other fees or reimburse any expenses or otherwise issue or provide any indemnities prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent; (ii) enter into, approve, modify or perform any definitive agreement or commitment or distribute any cash (except to the extent subject to concurrent reimbursement by Parent) that will be effective requested in writing at least eight (8) Business Days prior to the Closing Date; and
(iiixiv) incur any liability or give any indemnities cooperating in connection with satisfying the Debt Financing that are effective prior to the Effective Time; (iv) take any action that, conditions precedent set forth in the good faith determination of the Company, would unreasonably interfere with the conduct of the business of the Acquired Companies; (v) provide any information that is not reasonably available to the Company, (vi) prepare separate financial statements for any of the Acquired Companies to the extent not customarily prepared by the Acquired Companies and to the extent such preparation would be unduly burdensome or change any fiscal period; (vii) adopt any resolutions, execute any consents or otherwise take any corporate or similar action that will be effective prior to the Closing; or (viii) provide any legal opinion. In addition, no action, liability or obligation of the Acquired Companies or any of its Representatives pursuant to any certificate, agreement, arrangement, document or instrument definitive agreements relating to the Debt Financing (other than customary authorization letters (including with respect to the presence extent satisfaction thereof requires the cooperation, or absence of material non-public information and is within the accuracy control, of the information contained Company, its Subsidiaries or their respective representatives and is neither in the disclosure and marketing materials related to the Debt Financing, in each case based on financial information and data derived from conflict with Law nor any of the Company’s historical books and records)) will be effective until the Effective Time, and the Acquired Companies will not be required to take any action pursuant to any certificate, agreement, arrangement, document rights or instrument (other than customary authorization letters) that is not contingent on the occurrence of the Closing or that must be effective prior to the Effective Time. Nothing in this Section 6.20 will require (1) any officer, employee or Representative of the Acquired Companies to deliver any certificate or opinion or take any other action obligations under this Section 6.20 that would reasonably be expected to result in personal liability to such officer or RepresentativeAgreement.
(c) The Company hereby consents to the reasonable use of the Acquired Companies’ logos in connection with the Debt Financing, provided that such logos are used in a manner that is not intended to or reasonably likely to harm or disparage any of the Acquired Companies or the reputation or goodwill of any Acquired Company or are used in any other manner as approved by the Acquired Companies in their reasonable discretion.
(d) Promptly upon request by the Company, Parent will reimburse the Company for any reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Acquired Companies in connection with the cooperation of the Acquired Companies contemplated by Section 6.20(a). Parent shall indemnify and hold harmless the Acquired Companies and its Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments, penalties and amounts paid in settlement suffered or incurred by them in connection with any cooperation provided pursuant to this Section 6.20 or the provision of information utilized in connection therewith, except to the extent that any of the foregoing results from gross negligence, bad faith, willful misconduct or a material misstatement of the Company or its Affiliates. Parent’s obligations pursuant to the two preceding sentences are referred to collectively as the “Reimbursement Obligations”. Notwithstanding the foregoing, for the avoidance of doubt, the costs and expenses subject to the Reimbursement Obligations shall not include (x) costs and expenses incurred in connection with the preparation of financial statements that are or would be prepared in the ordinary course of business irrespective of this Agreement, (y) any ordinary course amounts payable to employees of the Company or its Affiliates with respect to services provided prior to the Closing Date and (z) any other ordinary course amounts that would have been incurred in connection with the transactions contemplated hereby regardless of any debt financing established in connection herewith and regardless of the covenants set forth in this Section 6.20(d).
Appears in 1 contract
Sources: Merger Agreement (STAMPS.COM Inc)
Cooperation with Debt Financing. (a) Prior to the Effective TimeClosing Date, each of the Acquired Companies Company shall use its reasonable best efforts toto provide, and shall to cause its Subsidiaries to use their reasonable best efforts to cause its respective officersprovide, employees and other representatives with appropriate seniority and expertise to, provide cooperation reasonably requested by ▇▇▇▇▇▇ to Parent and Merger Sub, in each case at Parent’s sole cost and expense, such reasonable cooperation as is customary for financings of the type contemplated in connection with any debt financing arrangements of the Debt Commitment Letter and reasonably requested by Parent or Merger Sub in connection with the transactions contemplated by this Agreement (arrangement of the “Debt Financing”), including using its reasonable best efforts to provide the following assistance: to, upon Parent’s written request:
(i) participating furnish Parent and Merger Sub (and causing senior management Parent and representativesMerger Sub may then furnish to applicable Financing Sources) (A) within forty-five (45) days after the end of any fiscal quarter that is not a fiscal year end, with appropriate seniority and expertise, the unaudited consolidated balance sheet of the Acquired Companies to participateCompany as of the end of such quarter and the related unaudited consolidated statements of operations and cash flows and (B) within ninety (90) days after the end of any fiscal year, with the audited consolidated balance sheet of the Company as of the end of such fiscal year and the related audited consolidated statements of operations and cash flows;
(ii) assist in preparation for and participate in a reasonable number of meetingsinvestor and lender meetings (including a reasonable and limited number of one-on-one meetings and calls that are requested in advance with or by the parties acting as lead arrangers or agents for, and prospective lenders of, the Debt Financing), presentations, road shows, due diligence sessions (including accounting due diligence sessions), drafting sessions and sessions with rating agencies in connection with the Debt Financing Sources at reasonable times and prospective lenders locations mutually agreed, and otherwise reasonably cooperating assist Parent in obtaining ratings in connection with the marketing and due diligence efforts for any of the Debt Financing, ;
(iiiii) providing reasonable assistance to Parent, Merger Sub assist Parent with the preparation by Parent and the Debt Financing Commitment Sources with the timely preparation of customary (A) materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, bank information memoranda, confidential information memoranda, lender presentations memoranda and similar marketing documents required in connection with or proper for the Debt Financing, including the execution and delivery of customary representation letters in connection with bank information memoranda;
(iv) cooperate reasonably with the Financing or customarily used to arrange transactions similar Commitment Sources’ due diligence, to the Debt Financing by companies extent customary and reasonably requested;
(v) assist Parent in connection with Parent’s preparation of a comparable size in a comparable industry as the Company; and (B) pro forma financial statements and forecasts of financial statements of the Acquired Companies for one or more periods following the Closing Date, in each case based on financial information Company and data derived from the Acquired Company’s historical books and records, provided, however, that no member its Subsidiaries of the Acquired Companies will type necessary or reasonably requested by the Financing Commitment Sources to be included in any bank information memoranda, offering documents, private placement memoranda, offering memoranda prospectuses or other customary marketing materials, including by providing such financial and other pertinent information regarding the Company and its Subsidiaries and their respective businesses; provided that neither the Company nor any of its Subsidiaries or Representatives shall be required to provide any information or assistance with respect relating to (A) the preparation of proposed debt and equity capitalization that is required for such pro forma financial statements and forecasts of financing statements, including relating to the determination of the proposed aggregate amount of the Debt Financing, the information or assumed interest rates thereunder or the and fees and expenses relating theretoto such debt and equity capitalization, or the determination of (B) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing; Financing or (iiiC) furnishing Parent, Merger Sub and the Debt Financing Sources as promptly as practicable with financial and other pertinent any information regarding the Acquired Companies related to Parent or any of its Subsidiaries or any adjustments that is reasonably available are not directly related to the Company acquisition of the Company;
(vi) execute and deliver as of (but not prior to) the Closing any pledge and security documents, other definitive financing documents, or other certificates or documents as may be reasonably requested by Parent or and otherwise reasonably facilitate the Debt Financing Sources to pledging of collateral as of (but not prior to) the extent Closing; provided that such information is (A) none of the type and form customarily included in a bank confidential information memorandum documents or certificates shall be executed and/or delivered except in connection with the arrangement of financing similar to the Debt Financing or in rating agency presentations, lender presentations or other customary marketing materials, (iv) providing customary authorization letters, confirmations and undertakings to the Debt Financing Sources authorizing the distribution of information to prospective lenders and containing a representation to the Debt Financing Sources that the information pertaining to the Acquired Companies contained in the disclosure and marketing materials related to the Debt Financing (other than forecasts and similar prospective information) is complete and correct in all material respected and that the public side versions of such documents, if any, do not include material non-public information about the Company or its Subsidiaries or securities, (v) (A) assisting with the preparation and negotiation of definitive financing documentation and the schedules and exhibits thereto (including loan agreements, guarantees, collateral agreements, hedging arrangements, and customary officer’s and other closing certificates (including a solvency certificate)) as may reasonably be requestedClosing, (B) facilitating the granting effectiveness thereof shall be conditioned upon, or become operative after, the occurrence of a security interest in and pledging of collateral, it being understood that such documents will not take effect until the Closing Date, and (C) cooperating in satisfying no liability shall be imposed on the conditions precedent set forth in Company or any definitive agreements relating of its Subsidiaries or any of their respective officers or employees involved prior to the Debt Financing to the extent the satisfaction thereof requires the cooperation or is in the control of the Acquired Companies, Closing Date; and
(vivii) promptly furnishing Parent, Merger Sub and the Debt Financing Sources with provide all documentation and other information about the Company and its Subsidiaries as is reasonably requested by any Debt Financing Source with respect to required under applicable “know your customer” and anti-money laundering rules and regulations, regulations including the USA PATRIOT Act, in each case, at least three five (5) Business Days prior to the Closing Date that has been reasonably to the extent requested by Parent in writing, writing at least ten days (10) Business Days prior to the Closing Date; provided that:
(A) in no event shall the Company or any of its Subsidiaries be required to provide any such cooperation to the extent it interferes unreasonably with the ongoing operations of the Company and its Subsidiaries;
(B) no obligation of the Company or any of its Subsidiaries or any of their respective Representatives on account of the Debt Financing shall be effective until the Effective Time (excluding in connection with any authorization letters delivered by the Company in connection with the Debt Financing);
(C) in no event shall the Company or any of its Subsidiaries be required to pay any commitment or other fee, and enter into any definitive agreement or agree to provide any indemnity in connection with the Financing prior to the Effective Time;
(viiD) taking corporate actionsnothing in this Section 6.6 shall require any action that would conflict with or violate the Company’s or any of its Subsidiaries’ organizational documents or any Laws or result in, prior to the Effective Time, the contravention of any Contract to which the Company or its Subsidiaries is a party;
(E) neither the Company or its Subsidiaries nor any Persons who is a director, officer or employee of the Company or its Subsidiaries shall be required to (x) pass resolutions or consents (except those which are subject to the occurrence of the Closing passed by directors or officers continuing in their positions following the Closing, necessary ) or (y) execute any document (excluding the representation letters referred to permit the consummation of the Debt Financing.
in clause (biii) Nothing in this Section 6.20 will require the Acquired Companies to (iabove) waive or amend any terms of this Agreement, pay any commitment fee or similar fee or agree to pay any other fees or reimburse any expenses or otherwise issue or provide any indemnities Contract prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf occurrence of Parent; (ii) enter into, approve, modify or perform any definitive agreement or commitment or distribute any cash (except to the extent subject to concurrent reimbursement by Parent) that will be effective prior to the Closing Date; (iii) incur any liability or give any indemnities in connection with the Debt Financing that are effective prior Financing;
(F) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to disclose or provide any information in connection with the Effective Time; (iv) take any action thatFinancing, the disclosure of which, in the good faith determination judgement of the Company, would unreasonably interfere with is subject to attorney-client privilege or could result in the conduct disclosure of any trade secrets or the business violation of any confidentiality obligation; provided that the Acquired Companies; (v) Company or such Subsidiary shall use reasonable best efforts to provide an alternative means of disclosing or providing such information, and in the case of any information that is not reasonably available to the Companyconfidentiality obligation, (vi) prepare separate financial statements for any of the Acquired Companies Company shall, to the extent permitted by such confidentiality obligations, notify Parent if any such information that Parent, Merger Sub or any Financing Commitment Source has specifically identified and requested is being withheld as a result of any such obligation of confidentiality;
(G) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to prepare or deliver (x) any financial information in a form not customarily prepared by the Acquired Companies and Company or its Subsidiaries in the ordinary course of their business, (y) any financial information with respect to the extent such preparation would be unduly burdensome or change any a fiscal period; (vii) adopt any resolutions, execute any consents or otherwise take any corporate or similar action period that will be effective prior to the Closing; has not yet ended or (viiiz) provide any legal opinion. In addition, no action, liability pro forma financial information or obligation projections (without waiver of the Acquired Companies obligations of the Company set forth in clause (vi) above);
(H) none of the Company or its Subsidiaries or any of its their respective Representatives pursuant shall be required to deliver any certificate, agreement, arrangement, document or instrument relating to the Debt Financing (other than customary authorization letters (including legal opinion in connection with respect to the presence or absence of material non-public information and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing, in each case based on financial information and data derived from ;
(I) none of the Company’s historical books and records)) will be effective until the Effective Time, and the Acquired Companies will not Company or its Subsidiaries or any of their respective Representatives shall be required to take any action pursuant that would cause the Company or any of its Subsidiaries to breach any representation, warranty, covenant or agreement in this Agreement; and
(J) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to take any action that could cause any director, officer or employee or stockholder of the Company or any of its Subsidiaries to incur personal liability. Parent shall, in the event the Closing shall not occur, (x) promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including (A) reasonable and documented attorneys’ fees and (B) reasonable and documented fees and expenses of the Company’s accounting firms engaged to assist in connection with the Financing, including performing additional requested procedures, reviewing any offering documents, participating in any meetings and providing any comfort letters) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries and Representatives contemplated by this Section 6.6(a) (it being understood that the reimbursement set forth in this paragraph shall not apply to any certificatefees, agreementcosts and expenses incurred by, arrangementor on behalf of, document the Company in connection with its ordinary course financial reporting requirements); and (y) indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs or instrument (other than customary authorization letters) that is not contingent on expenses suffered or incurred by any of them in connection with the occurrence arrangement of the Closing or that must be effective prior to Financing (including the Effective Time. Nothing in this Section 6.20 will require (1) any officer, employee or Representative performance of the Acquired Companies to deliver any certificate or opinion or take any other action their respective obligations under this Section 6.20 that would reasonably be expected 6.6) and any information used in connection therewith, in each case other than to the extent any of the foregoing was suffered or incurred as a result in personal liability to such officer of the bad faith, gross negligence or Representativewillful misconduct of the Company or any of its Subsidiaries (the “Reimbursement Obligations”).
(cb) The Company hereby consents to the reasonable use of the Acquired Companies’ its logos solely in connection with the Debt Financing, ; provided that Parent and Merger Sub shall ensure that such logos are used solely (i) in a manner that is not intended to or reasonably likely to harm or disparage any the Company or the Company’s reputation or goodwill, (ii) in connection with a description of the Acquired Companies Company, its business and products or the reputation Merger and (iii) in a manner that will comply with the Company’s usage requirements to the extent made available to Parent prior to the date of this Agreement.
(c) Parent and Merger Sub acknowledge and agree that the obtaining of the Financing, or goodwill of any Acquired Company or are used in any other manner as approved by the Acquired Companies in their reasonable discretionAlternative Debt Financing, is not a condition to Closing.
(d) Promptly upon request by In no event will any Guarantor, Parent, Merger Sub or any of their respective Affiliates (which for this purpose will be deemed to include each direct investor in Parent or Merger Sub and the CompanyFinancing Sources or potential Financing Sources of Parent, Parent will reimburse Merger Sub and such investors) enter into any Contract (i) awarding any agent, broker, investment banker or financial advisor any financial advisory role on an exclusive basis; or (ii) prohibiting or seeking to prohibit any bank, investment bank or other potential provider of debt financing from providing or seeking to provide debt financing or financial advisory services to any Person, in each case in connection with a transaction relating to the Company for any reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Acquired Companies Group or in connection with the cooperation of the Acquired Companies contemplated by Section 6.20(a). Parent shall indemnify and hold harmless the Acquired Companies and its Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments, penalties and amounts paid in settlement suffered or incurred by them in connection with any cooperation provided pursuant to this Section 6.20 or the provision of information utilized in connection therewith, except to the extent that any of the foregoing results from gross negligence, bad faith, willful misconduct or a material misstatement of the Company or its Affiliates. Parent’s obligations pursuant to the two preceding sentences are referred to collectively as the “Reimbursement Obligations”. Notwithstanding the foregoing, for the avoidance of doubt, the costs and expenses subject to the Reimbursement Obligations shall not include (x) costs and expenses incurred in connection with the preparation of financial statements that are or would be prepared in the ordinary course of business irrespective of this Agreement, (y) any ordinary course amounts payable to employees of the Company or its Affiliates with respect to services provided prior to the Closing Date and (z) any other ordinary course amounts that would have been incurred in connection with the transactions contemplated hereby regardless of any debt financing established in connection herewith and regardless of the covenants set forth in this Section 6.20(d)Merger.
Appears in 1 contract
Sources: Merger Agreement (RealPage, Inc.)
Cooperation with Debt Financing. (a) Prior to the Effective TimeClosing Date, each of the Acquired Companies Company shall, and shall use cause its reasonable best efforts Subsidiaries to, and shall use reasonable best efforts to cause its and their respective officers, employees Representatives (including legal and other representatives with appropriate seniority and expertise accounting representatives) to, provide cooperation reasonably requested by ▇▇▇▇▇▇ to Parent and Merger Sub, in each case at Parent’s sole cost and expenseexpense to the extent subject to the Reimbursement Obligations, in connection with any debt financing arrangements of such cooperation as is customary and reasonably requested by Parent or Merger Sub in connection with the transactions contemplated by this Agreement (arrangement and obtainment of the “Debt Financing or any high-yield bonds being issued in lieu of all or a portion of the Debt Financing”), including its reasonable efforts to provide the following assistance: including:
(i) participating furnishing Parent and Merger Sub (and causing Parent and Merger Sub may then furnish to applicable Financing Sources) as promptly as practicable with the Required Information;
(ii) using reasonable best efforts to cause senior management and representativesof the Company, with appropriate seniority and expertise, of to assist in the Acquired Companies preparation for and to participate) participate in a reasonable number of meetingsinvestor and lender meetings (including a reasonable and limited number of one-on-one meetings and calls that are requested in advance with or by the parties acting as lead arrangers or agents for, and prospective lenders of, the Debt Financing or any high-yield bonds being issued in lieu of all or a portion of the Debt Financing), presentations, road shows, due diligence sessions (including accounting due diligence sessions), drafting sessions and sessions with rating agencies in connection with the Debt Financing Sources or any high-yield bonds being issued in lieu of all or a portion of the Debt Financing at reasonable times and prospective lenders locations mutually agreed, and otherwise reasonably cooperating to assist Parent in obtaining ratings in connection with the Debt Financing or any high-yield bonds being issued in lieu of all or a portion of the Debt Financing;
(iii) using reasonable best efforts to provide assistance with the preparation by Parent and the Financing Sources of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, syndication memoranda, offering memoranda, lender presentations, confidential information memoranda and other customary marketing documents required in connection with the Debt Financing or any high-yield bonds being issued in lieu of all or a portion of the Debt Financing (collectively, the “Debt Marketing Materials”), including (A) furnishing (x) information reasonably necessary to prepare risk factors and (y) records, data or other information reasonably available and necessary to support any statistical information or claims relating to the Company appearing in the Debt Marketing Materials and (z) customary executed certificates of the chief financial officer (or other comparable officer) of the Company with respect to financial information (including pro forma financial information) included in the Debt Marketing Materials and (B) executing and delivering customary authorization letters in connection with bank information memoranda and lender presentations (which include customary 10b-5 and material non-public information representations);
(iv) using reasonable best efforts to cooperate reasonably with the Financing Sources’ due diligence diligence, to the extent customary and reasonably requested;
(v) using reasonable best efforts for to provide reasonable and customary assistance to Parent in connection with Parent’s preparation of pro forma financial statements of the Company and its Subsidiaries of the type necessary or reasonably requested by the Financing Sources to be included in any Debt Marketing Materials in respect of the Debt Financing or any high-yield bonds being issued in lieu of all or a portion of the Debt Financing, (ii) including by providing reasonable assistance to Parent, Merger Sub financial and other pertinent information regarding the Debt Financing Sources with the timely preparation of customary (A) rating agency presentations, bank information memoranda, confidential information memoranda, lender presentations Company and similar documents required in connection with or proper for the Debt Financing or customarily used to arrange transactions similar to the Debt Financing by companies of a comparable size in a comparable industry as the Companyits Subsidiaries and their respective businesses; and (B) pro forma financial statements and forecasts of financial statements of the Acquired Companies for one or more periods following the Closing Date, in each case based on financial information and data derived from the Acquired Company’s historical books and records, provided, however, that no member neither the Company nor any of the Acquired Companies will its Subsidiaries or Representatives shall be required to provide any information or assistance relating to (A) other than with respect to the preparation Existing Credit Documents and any other Indebtedness of the Company and its Subsidiaries that is anticipated to remain outstanding following the Closing, the proposed debt and equity capitalization that is required for such pro forma financial statements and forecasts of financing statements, including relating to the determination of the proposed aggregate amount of the Debt Financing, the information or assumed interest rates thereunder or the and fees and expenses relating theretoto such debt and equity capitalization, or the determination of (B) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing; Financing or (iiiC) furnishing Parentany information related to Parent or any of its Subsidiaries or any adjustments that are not directly related to the acquisition of the Company;
(vi) using reasonable best efforts to assist in the preparation, Merger Sub execution and delivery of pledge and security documents, other definitive financing documents, including any credit agreements, notes, indentures, guarantee and collateral documents, customary closing certificates and documents and back-up therefor and for legal opinions in connection with the Debt Financing Sources or any high-yield bonds being issued in lieu of all or a portion of the Debt Financing (including executing and delivering a solvency certificate from the chief financial officer or treasurer (or other comparable officer) of the Company (in the form attached as promptly Exhibit H to the Cash Flow Credit Agreement, as practicable with financial modified to reflect the Debt Financing)) and other pertinent information regarding the Acquired Companies that is reasonably available to the Company customary documents as may be reasonably requested by Parent or the Debt Financing Sources to and otherwise facilitating the extent that such information is pledging of, grant of the type security interests in and form customarily included in a bank confidential information memorandum obtaining of perfection of any liens on collateral in connection with the arrangement of financing similar to the Debt Financing or any high-yield bonds being issued in rating agency presentations, lender presentations lieu of all or other customary marketing materials, (iv) providing customary authorization letters, confirmations and undertakings to a portion of the Debt Financing Sources authorizing the distribution of information to prospective lenders and containing a representation to the Debt Financing Sources Financing; provided that the information pertaining to the Acquired Companies contained (except in the disclosure and marketing materials related to the Debt Financing (other than forecasts and similar prospective information) is complete and correct in all material respected and that the public side versions case of such documents, if any, do not include material non-public information about the Company or its Subsidiaries or securities, (v) (A) assisting with a customary certificate of the preparation chief financial officer (or other comparable officer) of the Company described in clause (iii)(A)(z) above that is required to be delivered upon “pricing” and negotiation closing of definitive financing documentation and the schedules and exhibits thereto (including loan agreements, guarantees, collateral agreements, hedging arrangements, and customary officer’s and other closing certificates (including a solvency certificate)) as may reasonably be requestedhigh-yield bonds, (B) facilitating the granting of a security interest authorization letters set forth in and pledging of collateral, it being understood that such documents will not take effect until the Closing Date, clause (iii) above and (C) cooperating the representation letters required by the Company’s auditors in satisfying connection with the conditions precedent delivery of “comfort letters” set forth in clause (xi) below), (I) none of the documents or certificates shall be executed and/or delivered except in connection with the Closing, (II) the effectiveness thereof shall be conditioned upon, or become operative as of or after, the occurrence of the Closing and (III) no liability shall be imposed on the Company or any definitive agreements relating of its Subsidiaries or any of their respective officers or employees prior to the Debt Financing to the extent the satisfaction thereof requires the cooperation or is in the control of the Acquired Companies, Closing Date;
(vivii) promptly furnishing Parent, Merger Sub and the Debt Financing Sources with providing all documentation and other information about the Company and its Subsidiaries as is reasonably requested by any Debt Financing Source with respect to under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law on October 26, 2001, as amended from time to time) and the Customer Due Diligence Requirements for Financial Institutions issued by the U.S. Department of Treasury Financial Crimes Enforcement Network under the Bank Secrecy Act (such rule published May 11, 2016 and effective May 11, 2018, as amended from time to time) and providing a certification regarding beneficial ownership required by 31 C.F.R. § 1010.230, in each case, at least three four (4) Business Days prior to the Closing Date that has been reasonably to the extent requested by Parent in writing, writing at least ten days nine (9) Business Days prior to the Closing Date, and ;
(viiviii) taking corporate actions, subject using reasonable best efforts to ensure that the occurrence syndication efforts for the Debt Financing or any high-yield bonds being issued in lieu of all or a portion of the ClosingDebt Financing benefit from the Company’s existing lending and banking relationships;
(ix) using reasonable best efforts to cooperate with Parent and Parent’s efforts to obtain consents, necessary landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance (including providing reasonable access to Parent and its representatives to all owned or leased real property) as reasonably requested by Parent;
(x) using reasonable best efforts to take all corporate, limited liability company, partnership or other similar actions reasonably requested by Parent or any Financing Sources to permit the consummation of the Debt Financing or any high-yield bonds being issued in lieu of all or a portion of the Debt Financing.
(b) Nothing in this Section 6.20 will require the Acquired Companies to ; provided that (i) waive no such actions shall be required to be effective prior to the Closing, and (ii) no such action shall be required of any director or amend officer of the Company that is not continuing in such capacity following the Closing Date;
(xi) using reasonable best efforts to cause ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (and any other auditor to the extent financial statements audited or reviewed by such auditor are or would be included in an offering memorandum) to (1) furnish to Parent and the Financing Sources, consistent with customary practice, customary comfort letters (including “negative assurance” comfort and change period comfort) and consents, together with drafts of such comfort letters that such independent auditors of the Company are prepared to deliver upon “pricing” and “closing” of any high-yield bonds being issued in lieu of all or a portion of the Debt Financing, and deliver such comfort letters upon the “pricing” and “closing” of any such high-yield bonds, with respect to financial information relating to the Company as reasonably requested by Parent or the Financing Sources, as necessary or customary for financings similar to the Debt Financing or any high-yield bonds being issued in lieu of all or a portion of the Debt Financing and (2) attend accounting due diligence session and drafting sessions;
(xii) using reasonable best efforts to grant the Financing Sources on reasonable terms and upon reasonable request, at reasonable times and on reasonable notice, access to the Company’s properties, rights, assets and cash management and accounting systems (including cooperating in and facilitating the completion of this Agreementfield examinations, collateral audits, asset appraisals and surveys); and
(xiii) using reasonable best efforts to furnish Parent and the Financing Sources all existing field examinations, collateral audits and asset appraisals and surveys of the Company; provided, that:
(A) in no event shall the Company or any of its Subsidiaries be required to provide any such cooperation to the extent it interferes unreasonably with the ongoing operations of the Company and its Subsidiaries;
(B) no obligation of the Company or any of its Subsidiaries or any of their respective Representatives on account of the Debt Financing shall be effective until the Closing Date (except in the case of (1) any certificate of the chief financial officer (or other comparable officer) of the Company described in clause (iii)(A)(z) above that is required to be delivered upon “pricing” and closing of the high-yield bonds, (2) the authorization letters set forth in clause (iii) above, (3) any certificate of the chief financial officer (or other comparable officer) of the Company reasonably required by Parent’s counsel in connection with the delivery of any legal opinions such counsel may be required to deliver (including the certificates set forth in clauses (iii) and (vi) above, and (4) the representation letters required by the Company’s auditors in connection with the delivery of “comfort letters” set forth in clause (xi) above);
(C) in no event shall the Company or any of its Subsidiaries be required to pay any commitment fee or similar fee or agree to pay any other fees or reimburse any expenses or otherwise issue or provide any indemnities prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent; (ii) fee, enter into, approve, modify or perform into any definitive agreement or commitment or distribute agree to provide any cash (except to indemnity in connection with the extent subject to concurrent reimbursement by Parent) Financing that will be is effective prior to the Closing Date; ;
(D) nothing in this Section 6.14 shall require any action that would conflict with or violate the Company’s or any of its Subsidiaries’ organizational documents or any applicable Laws or result in, prior to the Closing Date, the contravention of any Material Contract to which the Company or its Subsidiaries is a party;
(E) neither the Company or its Subsidiaries nor any Persons who is a director, officer or employee of the Company or its Subsidiaries shall be required to (x) pass resolutions or consents to approve or authorize the execution of the Debt Financing (except those which are subject to the occurrence of the Closing passed by directors or officers continuing in their positions following the Closing), or (y) execute any document or Contract (except in the case of (1) any certificate of the chief financial officer (or other comparable officer) of the Company described in clause (iii)(A)(z) above that is required to be delivered upon “pricing” and closing of the high-yield bonds, (2) the authorization letters set forth in clause (iii) incur any liability or give any indemnities above and (3) the representation letters required by the Company’s auditors in connection with the delivery of “comfort letters” set forth in clause (xi) above) prior to the occurrence of the Closing in connection with the Debt Financing that are effective prior Financing;
(F) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to disclose or provide any information in connection with the Effective Time; (iv) take any action thatFinancing, the disclosure of which, in the good faith determination judgement of the Company, would unreasonably interfere with is subject to attorney-client privilege or could result in the conduct disclosure of any trade secrets or the violation of any confidentiality obligation; provided, that the Company or such Subsidiary shall use reasonable best efforts to provide an alternative means of disclosing or providing such information, and in the case of any confidentiality obligation, the Company shall, to the extent permitted by such confidentiality obligations, notify Parent if any such information that Parent, Merger Sub or any Financing Source has specifically identified and requested is being withheld as a result of any such obligation of confidentiality;
(G) none of the business Company or its Subsidiaries or any of their respective Representatives shall be required to prepare or deliver (except to the Acquired Companies; extent (vi) provide any constituting Required Information, (ii) in the case of clause (x) or (y), such financial information that is not reasonably available relates to the Company’s borrowing base (or related terms of similar import) and is of the type and as would customarily be necessary in connection with private-side marketing or syndication materials for asset-based revolving credit facilities or (iii) such financial information is required to be delivered in accordance with Section 6.14(c)), (vix) prepare separate any financial statements for any of the Acquired Companies to the extent information in a form not customarily prepared by the Acquired Companies and Company or its Subsidiaries in the ordinary course of their business, (y) any financial information with respect to the extent such preparation would be unduly burdensome or change any a fiscal period; (vii) adopt any resolutions, execute any consents or otherwise take any corporate or similar action period that will be effective prior to the Closing; has not yet ended or (viiiz) provide any legal opinion. In addition, no action, liability pro forma financial information or obligation projections (without waiver of the Acquired Companies obligations of the Company set forth in clause (v) above);
(H) none of the Company or its Subsidiaries or any of its their respective Representatives pursuant shall be required to deliver any certificate, agreement, arrangement, document or instrument relating to the Debt Financing (other than customary authorization letters (including legal opinion in connection with respect to the presence or absence of material non-public information and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing, in each case based on financial information and data derived from ;
(I) none of the Company’s historical books and records)) will be effective until the Effective Time, and the Acquired Companies will not Company or its Subsidiaries or any of their respective Representatives shall be required to take any action pursuant that would cause the Company or any of its Subsidiaries to breach any certificaterepresentation, agreementwarranty, arrangement, document covenant or instrument agreement in this Agreement; and
(other than customary authorization lettersJ) that is not contingent on the occurrence none of the Closing Company or that must its Subsidiaries or any of their respective Representatives shall be effective prior required to the Effective Time. Nothing in this Section 6.20 will require (1) any officer, employee or Representative of the Acquired Companies to deliver any certificate or opinion or take any other action under this Section 6.20 that would could reasonably be expected to result in personal liability to such cause any director, officer or Representative.
(c) The Company hereby consents to the reasonable use employee or stockholder of the Acquired Companies’ logos in connection with the Debt Financing, provided that such logos are used in a manner that is not intended to Company or reasonably likely to harm or disparage any of its Subsidiaries to incur personal liability. Parent shall, in the Acquired Companies or event the reputation or goodwill of any Acquired Company or are used in any other manner as approved by the Acquired Companies in their reasonable discretion.
Closing shall not occur, (dx) Promptly promptly, upon request by the Company, Parent will reimburse the Company for any all reasonable and documented out-of-pocket costs and expenses (including (A) reasonable and documented attorneys’ feesfees and (B) reasonable and documented fees and expenses of the Company’s accounting firms engaged to assist in connection with the Financing, including performing additional requested procedures, reviewing any offering documents, participating in any meetings and providing any comfort letters) incurred by the Acquired Companies Company or any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Acquired Companies contemplated by Section 6.20(a). Parent shall indemnify and hold harmless the Acquired Companies Company and its Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments, penalties and amounts paid in settlement suffered or incurred by them in connection with any cooperation provided pursuant to this Section 6.20 or the provision of information utilized in connection therewith, except to the extent that any of the foregoing results from gross negligence, bad faith, willful misconduct or a material misstatement of the Company or its Affiliates. Parent’s obligations pursuant to the two preceding sentences are referred to collectively as the “Reimbursement Obligations”. Notwithstanding the foregoing, for the avoidance of doubt, the costs and expenses subject to the Reimbursement Obligations shall not include (x) costs and expenses incurred in connection with the preparation of financial statements that are or would be prepared in the ordinary course of business irrespective of this Agreement, (y) any ordinary course amounts payable to employees of the Company or its Affiliates with respect to services provided prior to the Closing Date and (z) any other ordinary course amounts that would have been incurred in connection with the transactions contemplated hereby regardless of any debt financing established in connection herewith and regardless of the covenants set forth in this Section 6.20(d).Su
Appears in 1 contract
Cooperation with Debt Financing. (a) Prior If Parent intends to the Effective Time, each of the Acquired Companies shall use its reasonable best efforts to, and shall use reasonable best efforts to cause its respective officers, employees and other representatives with appropriate seniority and expertise to, provide cooperation reasonably requested by ▇▇▇▇▇▇ and Merger Sub, at Parent’s sole cost and expense, in connection with obtain any debt financing arrangements of Parent or Merger Sub in connection with the transactions contemplated by this Agreement Merger at the Effective Time and enters into an agreement or commitment letter with respect thereof (the “Debt Financing” and together with the Equity Financing, the “Financing”), including if reasonably requested by Parent, in all cases subject to the limitations set forth herein and, the Company will use its commercially reasonable efforts efforts, and will cause each of its Subsidiaries to use its respective commercially reasonable efforts, to provide the following assistance: Parent with customary cooperation reasonably requested by Parent to assist it in obtaining such Debt Financing by:
(i) participating as promptly as reasonably practicable, timely furnishing to Parent and any Debt Financing Source and their respective Representatives the Required Financing Information and such other information regarding the Company and its Subsidiaries reasonably necessary for the arrangement (and causing senior management consummation) of any Debt Financing or assembly of marketing materials and representativescustomary for financings of this type; provided, that the obligations set forth in this Section 4.14(a)(i) may be satisfied with appropriate seniority and expertiserespect to the Required Financial Information by filing the Form 10-K or 10-Q, as applicable, of the Acquired Companies Company filed with the SEC within the applicable time periods required by applicable law and regulations (including any extended deadlines available thereunder); provided, further, that, notwithstanding anything to participatethe contrary in this Section 4.14, the Company shall not be required to provide Required Financing Information with respect to any fiscal quarter after the date hereof prior to the date that is thirty five (35) days after the end of such fiscal quarter;
(ii) participating in a reasonable number of meetings, presentationspresentations with actual or prospective Debt Financing Sources, road shows, due diligence sessions, drafting sessions and sessions with rating agencies (which, at the Debt Financing Sources Company’s option, may be attended via teleconference or virtual meeting platforms), in each case, upon reasonable advance notice, at reasonable times and prospective lenders and otherwise reasonably cooperating with the marketing and due diligence efforts for any of the Debt Financing, locations to be mutually agreed;
(iiiii) providing reasonable assistance to Parent, Merger Sub assisting Parent and the Debt Financing Sources with in the timely preparation of customary (A) rating agency presentations, bank information memoranda, confidential information memoranda, lender presentations memoranda and similar documents high-yield offering prospectuses or memoranda required in connection with or proper for the Debt Financing, in each case, solely as required in connection with the Debt Financing or and customarily used to arrange transactions similar to the Debt Financing by companies of a comparable size in a comparable industry as the Company; and (B) pro forma financial statements and forecasts of financial statements of the Acquired Companies for one or more periods following the Closing Date, in each case based on financial information and data derived from the Acquired Company’s historical books and records, provided, however, that no member of (A) the Acquired Companies Company and its Representatives will be required to provide any information or assistance with respect to not have responsibility for the preparation of any pro forma financial statements and statements, forecasts of financing statements, including relating to or projections; and (B) all such authorization letters and materials related thereto (1) shall include or otherwise expressly incorporate language that exculpates the determination of the proposed aggregate amount of the Debt FinancingCompany, the interest rates thereunder or the fees its Affiliates and expenses relating thereto, or the determination of its and their respective Representatives from any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used liability in connection with the Debt Financing; unauthorized use or misuse by the recipients thereof of all such presentations, memoranda and other materials and documents and information set forth therein, and (iii2) furnishing Parentshall have been previously identified to, Merger Sub and provided to, the Company and the Debt Financing Sources as promptly as practicable Company and its Representatives shall have been given reasonable opportunity to review and comment thereon;
(iv) (a) assisting with the preparation of definitive financing documentation, including any schedules or exhibits thereto or any perfection certificate, (b) obtaining a certificate of the chief financial officer (or person performing similar functions) of the Company with respect to solvency matters, (c) assisting with obtaining landlord waivers and insurance certificates and endorsements, and (d) assisting Parent in connection with the preparation of any pledge, security and other pertinent information regarding the Acquired Companies that is reasonably available to the Company financing documents as may be reasonably requested by Parent or the Debt Financing Sources to the extent that such information is of the type and form customarily included in a bank confidential information memorandum in connection with the arrangement of financing similar to the Debt Financing or in rating agency presentations, lender presentations or other customary marketing materials, (iv) providing customary authorization letters, confirmations and undertakings to the Debt Financing Sources authorizing the distribution of information to prospective lenders and containing a representation to the Debt Financing Sources that the information pertaining to the Acquired Companies contained in the disclosure and marketing materials related to the Debt Financing (other than forecasts and similar prospective information) is complete and correct in all material respected and that the public side versions of such documents, if any, do not include material non-public information about the Company or its Subsidiaries or securities, (v) (A) assisting with the preparation and negotiation of definitive financing documentation and the schedules and exhibits thereto (including loan agreements, guarantees, collateral agreements, hedging arrangementsSources, and customary officer’s otherwise reasonably facilitating the pledging of collateral and other closing certificates (including a solvency certificate)) as may reasonably be requested, (B) facilitating the granting of a security interest interests in and pledging respect of collateralthe Debt Financing, it being understood that such documents will not take effect until the Closing Date, and Effective Time;
(Cv) cooperating in satisfying facilitating the conditions precedent set forth in any definitive agreements relating to pledging or the Debt Financing to the extent the satisfaction thereof requires the cooperation or is in the control reaffirmation of the Acquired Companiespledge of collateral, which such pledge will not take effect until the Effective Time;
(vi) promptly subject to and conditioned upon the occurrence of the Closing, the taking of corporate actions reasonably necessary to permit the consummation of any Debt Financing and to permit the proceeds thereof to be made available to Parent;
(vii) furnishing Parent, Merger Sub Parent and the Debt Financing Sources at least four (4) Business Days prior to Closing with all documentation and other information reasonably requested required by any Debt Financing Source with respect regulatory authorities pursuant to applicable “know your customer” and anti-money laundering rules and regulations, including regulations to the USA PATRIOT Act, in each case, extent requested at least three nine (9) Business Days prior to the Closing Date that has been reasonably requested by Parent in writing, at least ten days prior to the Closing Date, and (vii) taking corporate actions, subject to the occurrence of the Closing, necessary to permit the consummation of the Debt Financing.
(b) Nothing in this Section 6.20 will require the Acquired Companies to (i) waive or amend any terms of this Agreement, pay any commitment fee or similar fee or agree to pay any other fees or reimburse any expenses or otherwise issue or provide any indemnities prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent; (ii) enter into, approve, modify or perform any definitive agreement or commitment or distribute any cash (except to the extent subject to concurrent reimbursement by Parent) that will be effective prior to the Closing Date; (iii) incur any liability or give any indemnities in connection with the Debt Financing that are effective prior to the Effective Time; (iv) take any action that, in the good faith determination of the Company, would unreasonably interfere with the conduct of the business of the Acquired Companies; (v) provide any information that is not reasonably available to the Company, (vi) prepare separate financial statements for any of the Acquired Companies to the extent not customarily prepared by the Acquired Companies and to the extent such preparation would be unduly burdensome or change any fiscal period; (vii) adopt any resolutions, execute any consents or otherwise take any corporate or similar action that will be effective prior to the Closing; or and
(viii) provide any legal opinion. In addition, no action, liability or obligation cooperating with the satisfaction of the Acquired Companies or any of its Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating conditions precedent to the Debt Financing (other than customary authorization letters (including with respect to the presence or absence of material non-public information and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing, in each case based on financial information and data derived from the Company’s historical books and records)) will be effective until the Effective Time, and the Acquired Companies will not be required to take any action pursuant to any certificate, agreement, arrangement, document or instrument (other than customary authorization letters) that is not contingent on the occurrence of the Closing or that must be effective prior to the Effective Time. Nothing in this Section 6.20 will require (1) any officer, employee or Representative of the Acquired Companies to deliver any certificate or opinion or take any other action under this Section 6.20 that would reasonably be expected to result in personal liability to such officer or Representative.
(c) The Company hereby consents to the reasonable use of the Acquired Companies’ logos in connection with the Debt Financing, provided that such logos are used in a manner that is not intended to or reasonably likely to harm or disparage any of the Acquired Companies or the reputation or goodwill of any Acquired Company or are used in any other manner as approved by the Acquired Companies in their reasonable discretion.
(d) Promptly upon request by the Company, Parent will reimburse the Company for any reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Acquired Companies in connection with the cooperation of the Acquired Companies contemplated by Section 6.20(a). Parent shall indemnify and hold harmless the Acquired Companies and its Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments, penalties and amounts paid in settlement suffered or incurred by them in connection with any cooperation provided pursuant to this Section 6.20 or the provision of information utilized in connection therewith, except to the extent that any such conditions are customary and consistent with the other terms of this Agreement and require the foregoing results from gross negligencecooperation of, bad faithand are within the control of, willful misconduct or a material misstatement of the Company or any of its Affiliates. Parent’s obligations pursuant to the two preceding sentences are referred to collectively as the “Reimbursement Obligations”. Notwithstanding the foregoing, for the avoidance of doubt, the costs and expenses subject to the Reimbursement Obligations shall not include (x) costs and expenses incurred in connection with the preparation of financial statements that are or would be prepared in the ordinary course of business irrespective of this Agreement, (y) any ordinary course amounts payable to employees of the Company or its Affiliates with respect to services provided prior to the Closing Date and (z) any other ordinary course amounts that would have been incurred in connection with the transactions contemplated hereby regardless of any debt financing established in connection herewith and regardless of the covenants set forth in this Section 6.20(dSubsidiaries).
Appears in 1 contract
Cooperation with Debt Financing. (a) Prior to the Effective TimeClosing Date, each of the Acquired Companies Company shall, and shall use cause its reasonable best efforts Subsidiaries to, and shall use reasonable best efforts to cause its and their respective officers, employees Representatives (including legal and other representatives with appropriate seniority and expertise accounting representatives) to, provide cooperation reasonably requested by ▇▇▇▇▇▇ to Parent and Merger Sub, in each case at Parent’s sole cost and expense, such cooperation as is customary and reasonably requested by Parent in connection with any the arrangement and obtainment of debt financing arrangements of Parent or Merger Sub in connection with the transactions contemplated by this Agreement or any high-yield bonds (collectively, the “Debt Financing”), including its reasonable efforts to provide the following assistance: including:
(i) participating furnishing Parent and Merger Subs (and causing Parent and Merger Subs may then furnish to applicable Financing Sources) as promptly as practicable with the Required Information; provided that the filing of the Required Information on Form 10-K and Form 10-Q by the Company will satisfy the requirements of this clause (i);
(ii) using reasonable best efforts to cause senior management and representativesof the Company, with appropriate seniority and expertise, of to assist in the Acquired Companies preparation for and to participate) participate in a reasonable number of meetingsinvestor and lender meetings (including customary one-on-one meetings and calls that are requested in advance with or by the parties acting as lead arrangers or agents for, and prospective lenders of, the Debt Financing), presentations, road shows, due diligence sessions (including accounting due diligence sessions), drafting sessions and sessions with rating agencies in connection with the Debt Financing Sources at reasonable times and prospective lenders locations mutually agreed, and otherwise reasonably cooperating to assist Parent in obtaining ratings in connection with the Debt Financing;
(iii) using reasonable best efforts to provide assistance with the preparation by Parent and the Financing Sources of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, syndication memoranda, offering memoranda, lender presentations, confidential information memoranda and other customary marketing documents required in connection with the Debt Financing (collectively, the “Debt Marketing Materials”), including (A) furnishing (w) business and financial projections reasonably requested by P▇▇▇▇▇, (x) information reasonably necessary to prepare risk factors, (y) records, data or other information reasonably available and necessary to support any statistical information or claims relating to the Company appearing in the Debt Marketing Materials and (z) customary executed certificates of the chief financial officer (or other comparable officer) of the Company with respect to financial information (including pro forma financial information) included in the Debt Marketing Materials and (B) executing and delivering customary authorization letters in connection with bank information memoranda and lender presentations (which include customary 10b-5 and material non-public information representations and shall be reasonably acceptable to the Company in all respects);
(iv) using reasonable best efforts to cooperate with the Financing Sources’ due diligence diligence, to the extent customary and reasonably requested;
(v) using reasonable best efforts for to provide reasonable and customary assistance to Parent in connection with Parent’s preparation of pro forma financial statements of the Company and its Subsidiaries of the type necessary or reasonably requested by the Financing Sources to be included in any Debt Marketing Materials in respect of the Debt Financing, (ii) including by providing reasonable assistance to Parent, Merger Sub financial and other pertinent information regarding the Debt Financing Sources with the timely preparation of customary (A) rating agency presentations, bank information memoranda, confidential information memoranda, lender presentations Company and similar documents required in connection with or proper for the Debt Financing or customarily used to arrange transactions similar to the Debt Financing by companies of a comparable size in a comparable industry as the Companyits Subsidiaries and their respective businesses; and (B) pro forma financial statements and forecasts of financial statements of the Acquired Companies for one or more periods following the Closing Date, in each case based on financial information and data derived from the Acquired Company’s historical books and records, provided, however, that no member neither the Company nor any of the Acquired Companies will its Subsidiaries or Representatives shall be required to provide any information or assistance relating to (A) other than with respect to the preparation Existing Credit Document and any other Indebtedness of the Company and its Subsidiaries that is anticipated to remain outstanding following the Closing, the proposed debt and equity capitalization that is required for such pro forma financial statements and forecasts of financing statements, including relating to the determination of the proposed aggregate amount of the Debt Financing, the information or assumed interest rates thereunder or the and fees and expenses relating theretoto such debt and equity capitalization, or the determination of (B) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt FinancingFinancing or (C) any information related to Parent or any of its Subsidiaries or any adjustments that are not directly related to the acquisition of the Company; provided, further, that the Company shall not be responsible for the preparation of any such pro forma financial statements, which shall be prepared solely by Parent;
(iiivi) furnishing Parentusing reasonable best efforts to assist in the preparation, Merger Sub execution and delivery of definitive financing documents, including any credit agreements, notes, indentures, guarantee and collateral documents, pledge and security documents, customary closing certificates and documents and back-up therefor and for legal opinions in connection with the Debt Financing Sources as promptly as practicable with (including executing and delivering a solvency certificate from the chief financial officer or treasurer (or other comparable officer) of the Company) and other pertinent information regarding the Acquired Companies that is reasonably available customary documents (including executing and delivering any certificate from an Authorized Officer pursuant to the Company definition of “Permitted Other Indebtedness” in the Existing Credit Document) as may be reasonably requested by Parent or the Debt Financing Sources to and otherwise facilitating the extent that such information is pledging of, grant of the type security interests in and form customarily included in a bank confidential information memorandum obtaining of perfection of any liens on collateral in connection with the arrangement of financing similar to the Debt Financing or in rating agency presentations, lender presentations or other customary marketing materials, Financing; provided that (iv) providing customary authorization letters, confirmations and undertakings to the Debt Financing Sources authorizing the distribution of information to prospective lenders and containing a representation to the Debt Financing Sources that the information pertaining to the Acquired Companies contained except in the disclosure and marketing materials related to the Debt Financing (other than forecasts and similar prospective information) is complete and correct in all material respected and that the public side versions case of such documents, if any, do not include material non-public information about the Company or its Subsidiaries or securities, (v) (A) assisting with a customary certificate of the preparation chief financial officer (or other comparable officer) of the Company described in clause (iii)(A)(z) above that is required to be delivered upon “pricing” and negotiation closing of definitive financing documentation and the schedules and exhibits thereto (including loan agreements, guarantees, collateral agreements, hedging arrangements, and customary officer’s and other closing certificates (including a solvency certificate)) as may reasonably be requestedhigh-yield bonds, (B) facilitating the granting authorization letters set forth in clause (iii) above, (C) the representation letters required by the Company’s auditors in connection with the delivery of a security interest “comfort letters” set forth in clause (x) below and pledging (D) the certificate of collateralan Authorized Officer that is required to be delivered pursuant to the definition of “Permitted Other Indebtedness” in the Existing Credit Document), it being understood that such (I) none of the documents will not take effect until or certificates shall be executed or delivered except in connection with the Closing, (II) the effectiveness thereof shall be conditioned upon, or become operative as of or after, the occurrence of the Closing and (III) no liability shall be imposed on the Company or any of its Subsidiaries or any of their respective officers or employees prior to the Closing Date, and ;
(Cvii) cooperating in satisfying the conditions precedent set forth in any definitive agreements relating to the Debt Financing to the extent the satisfaction thereof requires the cooperation or is in the control of the Acquired Companies, (vi) promptly furnishing Parent, Merger Sub and the Debt Financing Sources with providing all documentation and other information about the Company and its Subsidiaries as is reasonably requested by any Debt Financing Source with respect to under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law on October 26, 2001, as amended from time to time) and the Customer Due Diligence Requirements for Financial Institutions issued by the U.S. Department of Treasury Financial Crimes Enforcement Network under the Bank Secrecy Act (such rule published May 11, 2016 and effective May 11, 2018, as amended from time to time) and providing a certification regarding beneficial ownership required by 31 C.F.R. § 1010.230, in each case, at least three four (4) Business Days prior to the Closing Date that has been reasonably to the extent requested by Parent in writing, writing at least ten days nine (9) Business Days prior to the Closing Date;
(viii) using reasonable best efforts to ensure that the syndication efforts for the Debt Financing benefit from the Company’s existing lending and banking relationships;
(ix) using reasonable best efforts to take all corporate, and (vii) taking corporate actionslimited liability company, subject to the occurrence of the Closing, necessary partnership or other similar actions reasonably requested by Parent or any Financing Sources to permit the consummation of the Debt Financing.
(b) Nothing in this Section 6.20 will require the Acquired Companies to ; provided that (i) waive or amend any terms of this Agreement, pay any commitment fee or similar fee or agree no such actions shall be required to pay any other fees or reimburse any expenses or otherwise issue or provide any indemnities prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent; (ii) enter into, approve, modify or perform any definitive agreement or commitment or distribute any cash (except to the extent subject to concurrent reimbursement by Parent) that will be effective prior to the Closing, and (ii) no such action shall be required of any director or officer of the Company that is not continuing in such capacity following the Closing Date;
(x) using reasonable best efforts to cause Deloitte & Touche LLP (and any other auditor to the extent financial statements audited or reviewed by such auditor are or would be included in an offering memorandum) to (1) furnish to Parent and the Financing Sources, consistent with customary practice, customary comfort letters (including “negative assurance” comfort and change period comfort) and consents, together with drafts of such comfort letters that such independent auditors of the Company are prepared to deliver upon “pricing” and “closing” of any high-yield bonds, and deliver such comfort letters upon the “pricing” and “closing” of any such high-yield bonds, with respect to financial information relating to the Company as reasonably requested by Parent or the Financing Sources, as necessary or customary for financings similar to the Debt Financing and (2) attend accounting due diligence session and drafting sessions;
(xi) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing to the extent within the control of the Company; and
(xii) furnishing Parent and Merger Subs as promptly as practicable with any notices received by the Company or any of its Subsidiaries from any administrative agent or lender under the Existing Credit Document; provided, that:
(A) in no event shall the Company or any of its Subsidiaries be required to provide any such cooperation to the extent it interferes unreasonably with the ongoing operations of the Company and its Subsidiaries;
(B) no obligation of the Company or any of its Subsidiaries or any of their respective Representatives on account of the Debt Financing shall be effective until the Closing Date (except in the case of (1) any certificate of the chief financial officer (or other comparable officer) of the Company described in clause (iii)(A)(z) above that is required to be delivered upon “pricing” and closing of the high-yield bonds, (2) the authorization letters set forth in clause (iii) incur above, (3) the “know-your-customer” and anti-money laundering documents contemplated in clause (vii) above, (4) any liability certificate of the chief financial officer (or give other comparable officer) of the Company reasonably required by P▇▇▇▇▇’s counsel in connection with the delivery of any indemnities legal opinions such counsel may be required to deliver (including the certificates set forth in clauses (iii) and (vi) above), (5) the representation letters required by the Company’s auditors in connection with the delivery of “comfort letters” set forth in clause (x) above and (6) any certificate of an Authorized Officer that is required to be delivered pursuant to the definition of “Permitted Other Indebtedness” in the Existing Credit Document));
(C) in no event shall the Company or any of its Subsidiaries be required to pay any commitment or other fee, enter into any definitive agreement or agree to provide any indemnity in connection with the Debt Financing that are is effective prior to the Effective Time; Closing Date;
(ivD) take nothing in this Section 6.18 shall require any action that, in the good faith determination of that would conflict with or violate the Company, would unreasonably interfere with the conduct of the business of the Acquired Companies; (v) provide any information that is not reasonably available to the Company, (vi) prepare separate financial statements for any of the Acquired Companies to the extent not customarily prepared by the Acquired Companies and to the extent such preparation would be unduly burdensome or change any fiscal period; (vii) adopt any resolutions, execute any consents or otherwise take any corporate or similar action that will be effective prior to the Closing; or (viii) provide any legal opinion. In addition, no action, liability or obligation of the Acquired Companies ’s or any of its Representatives pursuant Subsidiaries’ organizational documents or any applicable Laws or result in, prior to the Closing Date, the contravention of any certificateMaterial Contract to which the Company or its Subsidiaries is a party;
(E) neither the Company or its Subsidiaries nor any Persons who is a director, agreement, arrangement, document officer or instrument relating employee of the Company or its Subsidiaries shall be required to (x) pass resolutions or consents to approve or authorize the execution of the Debt Financing (other than customary authorization letters (including with respect except those which are subject to the presence or absence of material non-public information and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing, in each case based on financial information and data derived from the Company’s historical books and records)) will be effective until the Effective Time, and the Acquired Companies will not be required to take any action pursuant to any certificate, agreement, arrangement, document or instrument (other than customary authorization letters) that is not contingent on the occurrence of the Closing passed by directors or that must be effective prior to officers continuing in their positions following the Effective Time. Nothing Closing), or (y) execute any document or Contract (except in this Section 6.20 will require the case of (1) any officer, employee or Representative certificate of the Acquired Companies chief financial officer (or other comparable officer) of the Company described in clause (iii)(A)(z) above that is required to deliver be delivered upon “pricing” and closing of the high-yield bonds, (2) the authorization letters set forth in clause (iii) above, (3) the representation letters required by the Company’s auditors in connection with the delivery of “comfort letters” set forth in clause (x) above, (4) the “know-your-customer” and anti-money laundering documents contemplated in clause (vii) above prior to the occurrence of the Closing in connection with the Debt Financing and (5) any certificate or opinion or take any other action under this Section 6.20 of an Authorized Officer that would reasonably is required to be expected delivered pursuant to result the definition of “Permitted Other Indebtedness” in personal liability the Existing Credit Document) prior to such officer or Representative.the occurrence of the Closing in connection with the Debt Financing;
(cF) The Company hereby consents to the reasonable use none of the Acquired Companies’ logos Company or its Subsidiaries or any of their respective Representatives shall be required to disclose or provide any information in connection with the Debt Financing, provided the disclosure of which, in the judgment of the Company, is subject to attorney-client privilege or could result in the disclosure of any trade secrets or the violation of any confidentiality obligation; provided, that the Company or such logos are used Subsidiary shall use reasonable best efforts to provide an alternative means of disclosing or providing such information, and in the case of any confidentiality obligation, the Company shall, to the extent permitted by such confidentiality obligations, notify Parent if any such information that Parent, Merger Sub or any Financing Source has specifically identified and requested is being withheld as a result of any such obligation of confidentiality;
(G) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to prepare or deliver (except to the extent constituting Required Information), (x) any financial information in a manner form not customarily prepared by the Company or its Subsidiaries in the ordinary course of their business, (y) any financial information with respect to a fiscal period that has not yet ended or (z) any pro forma financial information or projections (without waiver of the obligations of the Company set forth in clause (v) above);
(H) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to disclose or provide any information in connection with the Debt Financing, the disclosure of which, in the judgment of the Company, would require the Company to make public such information in compliance with Regulation FD under the Exchange Act, except as contemplated by Section 6.18(e);
(I) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to deliver any legal opinion in connection with the Debt Financing;
(J) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to take any action that would cause the Company or any of its Subsidiaries to breach any representation, warranty, covenant or agreement in this Agreement; and
(K) none of the Company or its Subsidiaries or any of their respective Representatives shall be required to take any action that could reasonably be expected to cause any director, officer or employee or stockholder of the Company or any of its Subsidiaries to incur personal liability or to make any representation, warranty or certification which the Company has determined in good faith is not intended to or reasonably likely to harm or disparage any of the Acquired Companies or the reputation or goodwill of any Acquired Company or are used in any other manner as approved by the Acquired Companies in their reasonable discretiontrue.
(db) Promptly Parent shall, in the event the Closing shall not occur, (x) promptly, upon request by the Company, Parent will reimburse the Company for any all reasonable and documented out-of-pocket costs and expenses (including (A) reasonable and documented attorneys’ feesfees and (B) reasonable and documented fees and expenses of the Company’s accounting firms engaged to assist in connection with the Debt Financing, including performing additional requested procedures, reviewing any offering documents, participating in any meetings and providing any comfort letters) incurred by the Acquired Companies Company or any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Acquired Companies Company and its Subsidiaries and Representatives contemplated by Section 6.20(a). Parent shall indemnify and hold harmless 6.18(a) (it being understood that the Acquired Companies and its Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments, penalties and amounts paid in settlement suffered or incurred by them in connection with any cooperation provided pursuant to this Section 6.20 or the provision of information utilized in connection therewith, except to the extent that any of the foregoing results from gross negligence, bad faith, willful misconduct or a material misstatement of the Company or its Affiliates. Parent’s obligations pursuant to the two preceding sentences are referred to collectively as the “Reimbursement Obligations”. Notwithstanding the foregoing, for the avoidance of doubt, the costs and expenses subject to the Reimbursement Obligations shall not include (x) costs and expenses incurred in connection with the preparation of financial statements that are or would be prepared in the ordinary course of business irrespective of this Agreement, (y) any ordinary course amounts payable to employees of the Company or its Affiliates with respect to services provided prior to the Closing Date and (z) any other ordinary course amounts that would have been incurred in connection with the transactions contemplated hereby regardless of any debt financing established in connection herewith and regardless of the covenants reimbursement set forth in this Section 6.20(d).paragraph shall not apply to any
Appears in 1 contract
Cooperation with Debt Financing. (a) Prior to the Effective Time, each of the Acquired Companies shall use The parties acknowledge that Parent and its reasonable best efforts to, and shall use reasonable best efforts to cause its respective officers, employees and other representatives with appropriate seniority and expertise to, provide cooperation reasonably requested by ▇▇▇▇▇▇ and Merger Sub, at Parent’s sole cost and expense, in connection with any Subsidiaries may arrange third party debt financing arrangements for the purpose of Parent or Merger Sub in connection with funding the transactions contemplated by this Agreement Agreement, related fees and expenses in connection therewith and otherwise for working capital and general corporate purposes (the “Debt Financing”)) and, including prior to Closing, the Company shall use, and shall instruct its Representatives to use, reasonable best efforts to provide the following assistanceto Parent and its Subsidiaries customary cooperation as reasonably requested by Parent in connection with obtaining such Debt Financing, which shall include: (i) participating (furnishing Parent and causing senior management its Subsidiaries and representatives, with appropriate seniority and expertise, of the Acquired Companies to participate) in a reasonable number of meetings, presentations, due diligence sessions, drafting sessions and sessions with the Debt Financing Sources Sources, as promptly as reasonably practicable following Parent’s request, with information regarding the Company and prospective lenders the Company Subsidiaries customary for the arrangement of the Debt Financing, to the extent reasonably available to the Company and otherwise its Representatives and reasonably cooperating requested by Parent to assist in preparation of customary bank information memoranda, rating agency or lender presentations relating to the Debt Financing and other similar documents reasonably requested by Parent in connection with the marketing and due diligence efforts for any of the Debt Financing, (ii) providing reasonable assistance to Parentwith appropriate advance notice, Merger Sub and the Debt Financing Sources with the timely preparation of customary (A) rating agency presentations, bank information memoranda, confidential information memoranda, lender presentations and similar documents required in connection with or proper for the Debt Financing or customarily used to arrange transactions similar to the Debt Financing by companies of a comparable size participating in a comparable industry as the Company; reasonable number of lender meetings and (B) pro forma financial statements and forecasts of financial statements of the Acquired Companies for one or more periods following the Closing Date, in each case based on financial information and data derived from the Acquired Company’s historical books and records, provided, however, that no member of the Acquired Companies will be required to provide any information or assistance meetings with respect to the preparation of pro forma financial statements and forecasts of financing statements, including relating to the determination of the proposed aggregate amount of the Debt Financing, the interest rates thereunder or the fees and expenses relating thereto, or the determination of any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used rating agencies in connection with the Debt Financing at times and locations to be mutually agreed that are customary for financings of a type similar to the Debt Financing; , (iii) furnishing Parentassisting in (x) the preparation and execution of one or more credit agreements, Merger Sub and the Debt Financing Sources as promptly as practicable with financial currency or interest hedging agreements, delivery of one or more perfection certificates, security agreements and other pertinent information regarding the Acquired Companies that is reasonably available to the Company collateral documents (including assisting with preparing any disclosure schedules related thereto) or other definitive documents as may be reasonably requested by Parent or any of its Subsidiaries, including the Debt Financing Sources preparation of a customary solvency certificate, and otherwise facilitating the pledging of collateral and granting of security interests or (y) to the extent that such information is requested by Parent, the amendment of the type and form customarily included in a bank confidential information memorandum in connection with the arrangement of financing similar to the Debt Financing any currency or in rating agency presentations, lender presentations or other customary marketing materials, (iv) providing customary authorization letters, confirmations and undertakings to the Debt Financing Sources authorizing the distribution of information to prospective lenders and containing a representation to the Debt Financing Sources that the information pertaining to the Acquired Companies contained in the disclosure and marketing materials related to the Debt Financing (other than forecasts and similar prospective information) is complete and correct in all material respected and that the public side versions of such documents, if any, do not include material non-public information about interest hedging agreements entered into by the Company or its Subsidiaries any Company Subsidiary, in each case, on terms that are reasonably requested by Parent; provided that no obligation of the Company thereof under any such agreements or securities, amendments under this clause (viii) (A) assisting with the preparation and negotiation of definitive financing documentation and the schedules and exhibits thereto (including loan agreements, guarantees, collateral agreements, hedging arrangements, and customary officer’s and other closing certificates (including a solvency certificate)) as may reasonably shall be requested, (B) facilitating the granting of a security interest in and pledging of collateral, it being understood that such documents will not take effect effective until the Closing Date, and (Civ) cooperating in satisfying the conditions precedent set forth in any the definitive agreements relating to documentation entered into in connection with the Debt Financing to the extent the satisfaction thereof of such condition requires the cooperation of, or is in within the control of, the Company and its Representatives, (v) assisting with the marketing or syndication efforts of Parent in connection with the Acquired CompaniesDebt Financing, and (vi) promptly furnishing Parentassisting and requesting the deliverables required pursuant to the Payoff Letters; provided, Merger Sub and however, that in connection with the cooperation set forth in this Section 6.15, (A) no obligation of the Company or any Company Subsidiary under any agreement, certificate, document or instrument (other than, for the avoidance of doubt, the authorization letters referenced below) shall be effective until the Closing Date, (B) neither the Company nor any Company Subsidiary shall be required to pay or reimburse any commitment or other fee, give or agree to give to any person any indemnities or incur any other liability in connection with the Debt Financing Sources with Financing, in each case prior to the Closing Date. Notwithstanding anything to the contrary in this Agreement, the Company and its Representatives shall furnish to Parent and its Subsidiaries as promptly as practicable following written request by Parent or any of its Subsidiaries (1) all documentation and other information reasonably requested required by any Debt Financing Source with respect to regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation, the USA PATRIOT ActAct and certificates under the beneficial ownership regulations, in each case, which documentation and information shall be requested by Parent at least three nine Business Days prior to the Closing Date that has been reasonably requested by and provided to Parent in writing, at least ten days no later than four Business Days prior to the Closing Date, (2) all information available to the Company which is reasonably required for the preparation of the pro forma financial statements required by any Debt Financing Source (for the avoidance of doubt, Parent and its Subsidiaries shall be responsible for the preparation of such pro forma financial statements) and (vii3) taking corporate actions, subject the Required Financial Information. The Company hereby consents to the occurrence customary and reasonable use of the Closing, necessary to permit the consummation of its logos solely in connection with marketing or arranging the Debt Financing; provided that such logos are used solely in a manner that is not intended, or reasonably likely, to harm or disparage any of the Company or any of its Affiliates or the reputation or goodwill of the any of the Company or any of its Affiliates.
(b) Nothing Notwithstanding anything in this Section 6.20 will require Agreement to the Acquired Companies contrary, (A) neither the Company nor any of its Affiliates, or any of their respective directors, officers, employees or agents, shall be required to execute or enter into any certificate, instrument, agreement or other document in connection with the Debt Financing, other than (i) waive those directors, officers or amend any terms employees of this Agreement, pay any commitment fee or similar fee or agree the Company continuing in such roles after Closing and solely with respect to pay any other fees or reimburse any expenses or otherwise issue or provide any indemnities prior to agreements contingent upon the Effective Time for Closing and which it has would not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent; (ii) enter into, approve, modify or perform any definitive agreement or commitment or distribute any cash (except to the extent subject to concurrent reimbursement by Parent) that will be effective prior to the Closing Dateand (ii) customary authorization letters; (iiiB) nothing herein shall require cooperation or other actions or efforts on the part of the Company or any of its Affiliates, or any of their respective directors, officers, employees or agents, in connection with the Debt Financing to the extent it would interfere unreasonably and materially with the business or operations of the Company or any of its Affiliates or cause any covenant, representation or warranty of the Company in this Agreement to be breached; (C) neither the Company nor any of its Affiliates, or any of their respective directors, officers, employees or agents, will be required to pay any commitment or other similar fee for which reimbursement would not be provided or to incur any other liability or give any indemnities obligation in connection with the Debt Financing that are effective prior to the Effective Time; (iv) take any action that, in the good faith determination of the Company, would unreasonably interfere with the conduct of the business of the Acquired Companies; (v) provide any information that is not reasonably available to the Company, (vi) prepare separate financial statements for any of the Acquired Companies to the extent not customarily prepared by the Acquired Companies and to the extent such preparation would be unduly burdensome or change any fiscal period; (vii) adopt any resolutions, execute any consents or otherwise take any corporate or similar action that will be effective prior to the Closing; (D) nothing herein shall require the board of directors or (viii) provide any legal opinion. In addition, no action, liability or obligation similar governing body of the Acquired Companies Company to adopt resolutions approving the agreements, documents or any of its Representatives instruments pursuant to any certificate, agreement, arrangement, document or instrument relating to which the Debt Financing (other than customary authorization letters (including with respect to the presence or absence of material non-public information and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing, in each case based on financial information and data derived from the Company’s historical books and records)) will be effective until the Effective Time, and the Acquired Companies will not be required to take any action pursuant to any certificate, agreement, arrangement, document or instrument (other than customary authorization letters) is made that is not contingent on the occurrence of the Closing or that must would be effective prior to the Effective Time. Nothing Closing; (E) neither the Company nor any of its Affiliates, or any of their respective directors, officers, employees or agents, shall be required to incur any personal liability or provide or agree to provide any indemnity in this Section 6.20 will connection with any Debt Financing or any of the foregoing that would be effective prior to the Closing; (F) nothing herein shall require cooperation that (i) would require providing access to or disclosing information that the Company reasonably determines would be likely to jeopardize any legal privilege of the Company or which is prohibited or restricted under applicable Law, or (ii) the Company reasonably believes would result in a violation of any confidentiality arrangement; and (G) neither Company nor any of its Affiliates shall be required to provide (1) pro forma financial information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any officer, employee pro forma financial information or Representative of (2) any financial statements or other financial information in a form not customarily prepared by the Acquired Companies to deliver any certificate or opinion or take any other action under this Section 6.20 that would reasonably be expected to result in personal liability to such officer or RepresentativeCompany.
(c) The Company hereby consents to Upon the reasonable use earlier of the Acquired Companies’ logos in connection with Closing and the Debt Financing, provided that such logos are used in a manner that termination of this Agreement is not intended pursuant to or reasonably likely to harm or disparage any of the Acquired Companies or the reputation or goodwill of any Acquired Company or are used in any other manner as approved by the Acquired Companies in their reasonable discretion.
(d) Promptly upon request by the CompanyArticle VIII, Parent will shall promptly reimburse the Company and its Representatives for any reasonable all reasonable, documented and documented invoiced out-of-pocket costs and expenses (including reasonable reasonable, documented and documented invoiced out-of-pocket attorneys’ feesfees of a single outside counsel) incurred by the Acquired Companies in connection with the cooperation of the Acquired Companies contemplated by Section 6.20(a). Parent shall indemnify and hold harmless the Acquired Companies such Company and its Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments, penalties and amounts paid in settlement suffered or incurred by them in connection with any cooperation contemplated by Section 6.15(a); provided pursuant to this Section 6.20 or that the provision of information utilized in connection therewithCompany, except to the extent that any of the foregoing results from gross negligenceand not Parent, bad faith, willful misconduct or a material misstatement of the Company or its Affiliates. Parent’s obligations pursuant to the two preceding sentences are referred to collectively as the “Reimbursement Obligations”. Notwithstanding the foregoing, shall be responsible for the avoidance of doubt, the costs and expenses subject to the Reimbursement Obligations shall not include (x) fees, costs and expenses incurred in connection with the preparation of historical financial statements that are or would be prepared in the ordinary course of business irrespective regardless of this Agreementthe Debt Financing, (y) any ordinary course amounts payable to existing employees of the Company or and its Affiliates Representatives with respect to services provided prior to the Closing Date and (z) any other ordinary course amounts that would have been incurred in connection with the transactions contemplated hereby regardless of the Financing.
(d) Parent shall indemnify and hold harmless each of the Company, its Affiliates and each of the Company’s and its Affiliates’ respective Representatives from and against any debt financing established and all losses and other Liabilities suffered or incurred by any of them in connection herewith and regardless with any cooperation contemplated by Section 6.15(a), in each case other than as a result of the covenants fraud, bad faith, gross negligence or willful misconduct by or on behalf of such Person or Representative or from any material misrepresentation set forth in any information provided by the Company, its Affiliates and each of the Company’s and its Affiliates’ respective Representatives for use in connection with the Debt Financing.
(e) The condition set forth in Section 7.2(a), as it applies to the Company’s obligations under this Section 6.20(d)6.15, shall be deemed satisfied unless the Company has willfully breached its obligations under Section 6.15 and such breach has been the primary cause of the Debt Financing not being obtained.
(f) ▇▇▇▇▇▇ acknowledges and agrees that, notwithstanding anything in this Agreement to the contrary, Parent’s obligations to perform its agreements hereunder, including to consummate the Closing subject to the terms and conditions hereof, are not conditioned on obtaining the Debt Financing.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Clearwater Analytics Holdings, Inc.)