Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary in connection with the arranging, obtaining and syndication of the Financing, including using reasonable best efforts with respect to: (i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers); (ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type; (iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing; (iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing; (v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing; (vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources; (vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries; (viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion); (ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and (x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules.
Appears in 5 contracts
Sources: Transaction Agreement, Transaction Agreement, Transaction Agreement (Allergan PLC)
Financing Cooperation. (a) Until Parent shall, and shall cause its Affiliates to, use commercially reasonable efforts, subject to this Section 8.2, to obtain and consummate a financing to fund the earlier repayment in connection with the Closing of certain indebtedness of the Completion Company and its Subsidiaries, which financing shall be on terms and conditions and subject to documentation, in each case, in form and substance satisfactory to Parent in its sole discretion, (the valid termination “Financing”) as promptly as reasonably possible following the date of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsAgreement.
(b) The Company shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its and their respective officersRepresentatives to, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries Parent such assistance customary cooperation, as may be reasonably requested by AbbVie Parent to assist Parent in writing that is arranging the Financing, which reasonable best efforts shall include:
(i) reasonable cooperation with customary in connection with the arranging, obtaining and syndication marketing efforts of Parent for all or any portion of the Financing, including using causing its management team, with appropriate seniority and expertise, and use its reasonable best efforts with respect to:
(i) participating to cause its external auditors to assist in preparation for and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority participate in a reasonable number of meetings, presentations, road shows, drafting due diligence sessions, due diligence drafting sessions and sessions with prospective lenders, investors and rating agencies, at times in each case, upon reasonable notice and at locations reasonably acceptable to Allergan mutually agreeable dates and upon times;
(ii) providing reasonable notice, (B) assisting assistance with AbbVie’s the preparation of customary materials for registration statementsrating agency presentations, road show materials, bank information memoranda, prospectuses and bank syndication materials, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations memoranda and similar documents (including the delivery, within forty (40) days of the end of each applicable fiscal quarter, of unaudited consolidated balance sheets and related consolidated statements of income and cash flows of the Company for each interim fiscal quarter ended since the last audited financial statements and at least forty-five (45) days prior to the Closing Date and the delivery of customary authorization and representation letters in connection therewith) customarily required in connection with the Financing (collectively, “Marketing Material”) marketing and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing syndication of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable typeFinancing;
(iii) providing using reasonable best efforts to AbbViefurnish Parent, within a reasonable amount of time following Parent’s legal counsel reasonable request, with information reasonably available to the Company relating to the Company and its independent auditors such customary documents Subsidiaries to the extent required to consummate the Financing, and subject to clause (d) below, providing reasonable assistance to Parent’s preparation of pro forma financial information; and
(iv) promptly furnishing Parent with all documentation and other customary information relating related to Allergan the Company and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (solely to the extent required) evidence that notice of required by any such repayment has been timely delivered Governmental Authority with respect to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Act.
(c) Notwithstanding anything to the contrary contained in this Agreement (including this Section 7.9(a8.2): (i) or nothing in this Agreement (including this Section 7.9(b8.2) below, shall require any such cooperation to the extent that (A) it would require the Company to pay any commitment or other fees, reimburse any expenses or otherwise incur any liabilities that are not reimbursed by Parent as provided in clause (d) below or give any indemnities prior to the Closing, (B) it would require the Company to take any action that in the good faith judgment of the Company unreasonably interferes in a material manner with the ongoing business or operations of the Company and/or its Subsidiaries, (C) it would require the Company or any of its Subsidiaries to enter into, execute, or approve any agreement or other documentation prior to the Closing or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Closing (other than the execution of customary authorization and representation letters and any agreements to be executed at the Closing), (D) it would require the Company to provide any financial statements, (E) it would require the Company to provide any information the disclosure of which is prohibited by or restricted under applicable Law, or (F) it would require the Company, any of its Subsidiaries or any of their respective boards of directors (or equivalent bodies) to approve or authorize the Financing or any documentation related thereto, (ii) none of Allergan nor the Company or any of its Subsidiaries shall be required to take provide, and Parent shall be solely responsible for, (A) the preparation of pro forma financial information, including pro forma cost savings, synergies, capitalization or permit other pro forma adjustments desired to be incorporated into any pro forma financial information (it being understood and agreed that the taking Company and its Subsidiaries shall assist Parent in Parent’s preparation of the pro forma financial information), (B) any action pursuant description of all or any component of the Financing, including any such description to this Section 7.9(abe included in any liquidity or capital resources disclosure or any “description of notes”, (C) projections, risk factors or Section 7.9(bother forward-looking statements relating to any component of such financing or (D) below subsidiary financial statements or any other information of the type required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X, and (iii) no action, liability or obligation (including any obligation to (i) pay any commitment or other fee fees or incur reimburse any liability expenses) of the Company, its Subsidiaries, or any of their respective Representatives under any certificate, agreement, arrangement, document or instrument relating to the Financing shall be effective until the Closing.
(other than third-party costs and expenses that are to be d) Parent shall (i) promptly reimbursed by AbbVie upon request by Allergan pursuant the Company, reimburse the Company for all of its reasonable and documented out-of-pocket fees and expenses (including reasonable and documented out-of-pocket attorneys’ fees) incurred by the Company, any of its Subsidiaries or any of its or their Representatives in connection with any cooperation contemplated by this Section 8.2 and (ii) indemnify and hold harmless the Company, its Subsidiaries and its and their Representatives against any claim, loss, damage, injury, liability, judgment, award, penalty, fine, Tax, cost (including cost of investigation), expense (including reasonable and documented out-of-pocket attorneys’ fees) or settlement payment, in each case, incurred as a result of, or in connection with, such cooperation or the Financing, except to the extent arising out of gross negligence, bad faith or willful misconduct of the Company, its Subsidiaries or its and their Representatives. It is understood that the condition precedent set forth in Section 7.9(c9.2(b)), as applied to the Company’s obligations under this Section 8.2, shall be deemed to be satisfied unless (i) the Company shall have Willfully Breached this Section 8.2, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification such Willful Breach shall not have been cured within 10 days after receipt of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution written notice thereof that would not conflict with applicable Law from Parent and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access such Willful Breach shall have been the primary cause of Parent’s failure to or disclose information obtain the Financing. Parent acknowledges and agrees that Allergan or any obtaining the Financing is not a condition to Closing.
(e) The Company hereby consents to the use of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided trademarks and logos in connection with the Financing; provided, that Allergan shall, such trademarks and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed logos are used solely in a manner that would is not result in the loss of any such privilege), (iv) deliver intended to or cause its Representatives reasonably likely to deliver any legal opinion harm or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result disparage in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, manner the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan Company or any of its Subsidiaries or Representatives pursuant the reputation or goodwill of the Company or any of its Subsidiaries.
(f) Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 7.9 8.2 shall require, and in no event shall the commercially reasonable efforts of Parent be deemed or construed to be kept confidential in accordance with require Parent to pay any fees to the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of lenders or increase any interest rates or original issue discounts or upfront fees applicable to the Financing will be in a form customary for use in the syndication excess of acquisition-related debt during a takeover offer period in compliance with the requirements an amount acceptable to Parent or agree to terms not acceptable to Parent, whether to secure waiver of the Panel and the Takeover Rulesany conditions contained therein or otherwise.
Appears in 4 contracts
Sources: Merger Agreement (U.S. Well Services, Inc.), Merger Agreement (U.S. Well Services, Inc.), Merger Agreement (ProFrac Holding Corp.)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be reasonably If requested by AbbVie in writing that is customary in connection with a Stockholder or its Permitted Transferees, the arranging, obtaining and syndication of Company will provide the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material following cooperation (in each case, as all reasonable, documented out-of-pocket expenses incurred by the Company in connection with the foregoing, shall be borne by such Stockholder) in connection with the Stockholder and its Permitted Transferees obtaining any Permitted Loan: (i) entering into an issuer agreement (an “Issuer Agreement”) with each lender in customary form in connection with such transactions (which agreement may include, without limitation, agreements and obligations of the Company relating to procedures and specified time periods for effecting transfers and/or conversions upon foreclosure, agreements to not hinder or delay exercises of remedies on foreclosure, acknowledgments regarding corporate policy, if applicable, certain acknowledgments regarding securities law status of the pledge arrangements and a specified list of Competitors, Activist Investors and Restricted Persons) and subject to the consent of the Company (which will not be unreasonably withheld or delayed), with such changes thereto as are requested by such lender and customary confidentiality provisions and disclaimers);
for similar financings, (ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect using reasonable best efforts to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) remove any restrictive legends on certificates representing pledged Preferred Stock or Common Stock issued upon conversion of Preferred Stock and depositing any pledged Preferred Stock or Common Stock issued upon conversion of Preferred Stock in book entry form on the type that would be required by Regulation S-X books of The Depository Trust Company, in each case when eligible to do so (and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements providing any necessary indemnities to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), transfer agent in connection therewith) or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements without limiting the generality of clause (A), if such Preferred Stock is eligible for resale under Rule 144A, depositing such pledged Preferred Stock in book entry form on the books of The Depository Trust Company or other depository with customary for Financings of the applicable type;
Rule 144A restrictive legends, (iii) providing if so requested by such lender or counterparty, as applicable, re-registering the pledged Preferred Stock or Common Stock issued upon conversion of Preferred Stock in the name of the relevant lender, counterparty, custodian or similar party to AbbVie’s legal counsel a Permitted Loan, with respect to Permitted Loans solely as securities intermediary and only to the extent the Stockholder, its Permitted Transferees (or its or their Affiliates) continue to beneficially own such pledged Preferred Stock or Common Stock issued upon conversion of Preferred Stock, (iv) entering into customary triparty agreements with each lender and the Stockholder (and its independent auditors such customary documents and other customary information relating to Allergan Permitted Transferees and its Subsidiaries as may be reasonably requested in connection with and their delivery of any customary negative assurance opinions and customary comfort letters Affiliates) relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities delivery of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships Preferred Stock or Common Stock issued upon conversion of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating Preferred Stock to the repayment or refinancing of any indebtedness relevant lender for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (crediting to the extent required) evidence that notice relevant collateral accounts upon funding of any the loan and payment of the purchase price including a right for such repayment has been timely delivered lender as a third party beneficiary of the Company’s obligations hereunder to issue the holders Preferred Stock or Common Stock issued upon conversion of such indebtedness, in each case Preferred Stock upon payment of the purchase therefor in accordance with the terms of this Agreement and (v) such other cooperation and assistance as the definitive documents governing such indebtedness Stockholder and its Permitted Transferees may reasonably request (which cooperation and assistance, for the avoidance of doubt, shall not include any requirements that the Company deliver information, compliance certificates or any other materials typically provided by borrowers to lenders) that any such notice or payoff letter shall be expressly will not unreasonably disrupt the operation of the Company’s business. Anything in the preceding sentence to the contrary notwithstanding, the Company’s obligation to deliver an Issuer Agreement is conditioned on the Completion);
(ix) procuring consents Stockholder or its Permitted Transferee certifying to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested Company in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none the loan agreement with respect to which the Issuer Agreement is being delivered constitutes a Permitted Loan being entered into in accordance with this Agreement, the Stockholder or its Permitted Transferee has pledged the Preferred Stock and/or the underlying shares of Allergan nor any Common Stock as collateral to the lenders under such Permitted Loan and that the execution of its Subsidiaries shall be required to take or permit such Permitted Loan and the taking terms thereof do not violate the terms of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))Agreement, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (xB) to the extent required applicable, whether the registration rights under the Registration Rights Agreement, dated as of even date herewith, by Section 7.9(b)and among the Company and the Stockholders, applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating are being assigned to the execution thereof lenders under that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above)Permitted Loan, (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor the Stockholder, its Permitted Transferees and its and their controlled Affiliates acknowledge and agree that the Company will be relying on such certificate when entering into the Issuer Agreement and any inaccuracy in such certificate will be deemed a breach of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries and (unless waived by AbbVie), (iiiD) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries the Company is not required to incur any personal liability or material obligations other than as specifically set forth in the proceeding sentence. The Stockholder and its Permitted Transferees acknowledge and agree that the statements and agreements of the Company in an Issuer Agreement are solely for the benefit of the applicable lenders party thereto and that in any dispute between the Company and the Stockholder (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie Permitted Transferee) under this Agreement the Stockholder and its Permitted Transferees shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant not be entitled to this Section 7.9 to be kept confidential in accordance with use the Confidentiality Agreement; provided, that Allergan acknowledges statements and agrees that the confidentiality undertakings that will be obtained in connection with syndication agreements of the Financing will be Company in a form customary for use in an Issuer Agreement against the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesCompany.
Appears in 4 contracts
Sources: Stockholders Agreement (Comscore, Inc.), Series B Convertible Preferred Stock Purchase Agreement (Comscore, Inc.), Series B Convertible Preferred Stock Purchase Agreement (Comscore, Inc.)
Financing Cooperation. (a) Until From the date of this Agreement until the earlier of (x) the Completion Closing Date and the valid (y) termination of this Agreement pursuant to and in accordance with Article 9VII, Allergan shall use its reasonable best effortsthe Company shall, and shall cause each of its Subsidiaries to to, use its commercially reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best effortsin each case at Parent’s sole expense, to provide to AbbVie and its Subsidiaries Parent such assistance cooperation as may be customary and reasonably requested by AbbVie necessary to assist Parent in writing that is customary arranging financing in connection with the arrangingTransactions (the “Financing”), obtaining and syndication which commercially reasonable efforts shall include:
(i) providing reasonable cooperation with the marketing efforts of Parent for all or any portion of the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by causing members of its senior management of Allergan team with appropriate seniority and expertise, and using its reasonable efforts to cause its external auditors, to assist in preparation for and to participate in a reasonable number of meetings, presentations, road showsdue diligence sessions, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times in each case, upon reasonable notice and at locations mutually agreeable dates and times;
(ii) providing financial and other pertinent information regarding the Company and its Subsidiaries that is reasonably acceptable requested by Parent in order to Allergan and upon reasonable notice, (B) assisting with AbbVie’s assist in the preparation of customary materials for rating agency presentations, road show materials, bank information memoranda, registration statements, prospectuses, pricing supplements, and bank syndication materials, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations memoranda and similar documents customarily required (which may incorporate, by reference, periodic and current reports filed by the Company with the SEC) in connection with the Financing (collectively, “Marketing Material”) marketing and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing syndication of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable typeFinancing;
(iii) providing using reasonable efforts to AbbVie’s legal cause their independent accountants and local and internal counsel to provide customary and its independent auditors such customary documents and other customary information relating reasonable assistance to Allergan and its Subsidiaries as may be reasonably requested Parent, including in connection with their delivery providing customary review of any customary negative assurance opinions interim financial statements as provided in Statement of Accounting Standards No. 100), and customary comfort letters relating to the Financingletters;
(iv) causing Allergan(A) providing audited consolidated annual balance sheets and related statements of income, comprehensive income and cash flows of the Company and the Company’s independent auditors Subsidiaries for the last three full fiscal years ended at least 60 days prior to provide customary cooperation the Closing Date, (B) providing unaudited interim consolidated balance sheets and related statements of income, comprehensive income and cash flows of the Company and the Company’s Subsidiaries for each subsequent fiscal quarterly interim period or periods ended at least 45 days prior to the Closing Date (and the corresponding period(s) of the prior fiscal year, which are prepared in accordance with GAAP (subject to the Financing;absence of footnote disclosures and year-end adjustments) (it being understood that, with respect to such financial information for each such fiscal year and subsequent interim period, such condition shall be deemed satisfied through the filing by the Company of its annual report on Form 10-K or quarterly report on Form 10-Q with respect to such fiscal year or interim period), and (C) providing Parent upon request with such information as may be necessary so that any and all information provided under this Section 5.14 is complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in light of the circumstances under which such statements are made, not misleading; and
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection furnishing Parent with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan with respect to the Company and its Subsidiaries as is shall have been reasonably requested in writing by AbbVie Parent at least ten (10) Business Days in advance of prior to the Completion Closing Date in connection with the Financing that relates to is required by applicable regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationthe PATRIOT Act, in each case no later than three Business Days prior to the USA PATRIOT ACT. Closing Date.
(b) Notwithstanding anything to the contrary contained in this Section 7.9(a) or Section 7.9(b) below, Agreement (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to including this Section 7.9(a5.14) or nothing in this Agreement (including this Section 7.9(b5.14) below shall require any such cooperation to the extent that it would (i) require the Company to pay any commitment or other fee fees, reimburse any expenses or otherwise incur any liability (other than third-party costs and expenses liabilities that are not required to be promptly be, or are, reimbursed or indemnified by AbbVie upon request by Allergan pursuant to Section 7.9(c))Parent as provided in clause (c) below, (ii) execute unreasonably interfere with the ongoing business or deliver any definitive financing documents operations of the Company and/or the Company’s Subsidiaries, (iii) require the Company or any of the Company’s Subsidiaries to enter into or approve any agreement or other agreement, certificate, document or instrument, documentation effective prior to the Closing Date or agree to any change to or modification of any existing agreement, certificate, document agreement or instrument, in each case other documentation that would be effective prior to the Completion Closing Date (other than customary authorization or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilegeagreements), (iv) deliver require the Company, any of the Company’s Subsidiaries or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use of their respective reasonable best efforts boards of directors (or equivalent bodies) to cause counsel to Allergan approve or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to authorize the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered))Financing, (v) be an issuer or other obligor with respect to require the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan Company or any of its Subsidiaries to incur take any corporate actions prior to the Closing Date to permit the consummation of the Financing, (vi) require the Company to waive or amend any terms of this Agreement, (vii) require the Company or any of its Subsidiaries to take any action that would conflict with any applicable Law, (viii) result in an equity holder, officer or director of the Company or any of its Subsidiaries incurring any personal liability or (ivix) result in a material violation cause any condition to Closing or on Exhibit A to fail to be satisfied or otherwise cause any breach ofof this Agreement (unless waived by Parent) or otherwise impair or delay the parties’ obligations under this Agreement, or (x) cause any condition to Closing or on Exhibit A to fail to be satisfied or otherwise cause any breach of this Agreement (unless waived by Parent).
(c) Parent shall keep the Company currently and reasonably informed with respect to its efforts under this Section 5.14, and shall provide the Company and its Representatives an update with respect to its efforts under this Section 5.14 within one (1) Business Day following Parent’s receipt of a default underrequest for such information from the Company.
(d) Parent shall (i) promptly upon request by the Company reimburse the Company for all of its reasonable and documented out-of-pocket fees and expenses (including reasonable and documented out-of-pocket attorneys’ fees) incurred by the Company, any material Contract to which Allergan of the Company’s Subsidiaries or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or their Representatives in connection with any applicable Law. AbbVie shall cause all non-public or other confidential information provided cooperation requested by or on behalf of Allergan or any of its Subsidiaries or Representatives Parent pursuant to this Section 7.9 5.14 and (ii) indemnify and hold harmless the Company, the Company’s Subsidiaries and its and their Representatives against any claim, loss, damage, injury, liability, Judgment, award, penalty, fine, Tax, cost (including cost of investigation), expense (including reasonable and documented out-of-pocket attorneys’ fees) or settlement payment incurred as a result of, or in connection with, such cooperation or the Financing, except to be kept confidential the extent (A) arising out of gross negligence, bad faith or willful misconduct of the Company or (B) arising from any written historical information utilized in accordance the Financing regarding the Company or the Company’s Subsidiaries provided to Parent for use in connection therewith in a manner mutually agreed.
(e) The Company hereby consents to the use of its trademarks and logos in connection with the Confidentiality AgreementFinancing in a form and manner mutually agreed in advance with the Company; provided, that Allergan acknowledges such trademarks and agrees logos are used solely in a manner that is not intended or reasonably likely to harm or disparage the confidentiality undertakings that will be obtained in connection with syndication Company or any of the Financing will be in a form customary for use in Company’s Subsidiaries or the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements reputation or goodwill of the Panel and Company or any of the Takeover RulesCompany’s Subsidiaries.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Seattle Genetics Inc /Wa), Merger Agreement (Cascadian Therapeutics, Inc.)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsVE shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its all reasonable best efforts to cause its and their its Subsidiaries’ respective officersRepresentatives to, employees provide reasonable cooperation in connection with the arrangement by VI of financing in the public or private capital markets or bank debt market for the purpose of financing the Share Purchase and advisors the fees and other Representativesexpenses incurred in connection therewith (the “Financing”), including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be reasonably requested by AbbVie VI, including:
(a) using all reasonable efforts to furnish VI and its underwriters or financing sources, on a reasonably prompt basis, the Required Information (but in writing relation to clause (c) of the definition of Required Information, only such financial statements, financial data, audit reports and other information regarding VE and its Subsidiaries pursuant to clause (c) of the definition of Required Information that are reasonably obtainable by VE), and using all reasonable efforts to furnish any other information relating to VE and its Subsidiaries that is customary or reasonably necessary for the completion of such Financing to the extent reasonably requested by VI to assist in preparation of customary offering or information documents to be used in connection with the arranging, obtaining and syndication Financing or otherwise in connection with the marketing or placement of the Financing, including using reasonable best efforts with respect to:;
(ib) participating using all reasonable efforts to cause VE’s and any of its Subsidiaries’ independent accountants, as reasonably requested, to provide reasonable assistance to VI consistent with their customary practice (including to consent to the use of their audit reports on the consolidated financial statements of VE and its Subsidiaries, in and assisting any materials relating to the Financing or in connection with any filings made with the due diligenceSEC or pursuant to the Securities Act or the Securities Exchange Act, syndication and to provide any “comfort letters” (including drafts thereof) necessary and reasonably requested by VI and its underwriters or other marketing financing sources in connection with any capital markets transaction comprising a part of the Financing (which such accountants would be prepared to issue at the time of pricing and at closing of any offering or placement of the Financing), including using in each case, on customary terms and consistent with their customary practice) and to participate in reasonable best efforts and customary due diligence sessions with respect to such underwriters or financing sources and their respective Representatives;
(Ac) the participation by members of management of Allergan with appropriate seniority participating in a reasonable number of meetings, presentations, road shows, drafting management due diligence sessions, due diligence drafting sessions and sessions with prospective lendersrating agencies in connection with the Financing;
(d) using all reasonable efforts to make available to VI and its underwriters or financing sources and their respective Representatives such documents and other information concerning VE and its Subsidiaries and their respective businesses, investors that are reasonably obtainable by VE, as is reasonably requested and rating agencies, at times and at locations reasonably acceptable provided in connection with due diligence investigations of issuers for purposes of a securities offering registered under the Securities Act; and
(e) using all reasonable efforts to Allergan and upon reasonable notice, (B) assisting assist with AbbVie’s the preparation of customary materials for registration statementsprospectuses, offering documents, private placement memorandadocuments (including pro forma financial statements to be included therein), bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing Financing, provided, that, in each case, such requested cooperation shall not (collectivelyi) unreasonably interfere with the ongoing operations of VE and its Affiliates, “Marketing Material”or (ii) require any commitment by VE or any of its Affiliates other than as expressly set forth in clauses (a) – (e) above that will be binding unless and due diligence sessions related theretountil the Closing shall occur. VI shall, promptly upon request by VE, reimburse VE for all reasonable and documented out-of-pocket costs and expenses incurred by VE or any of its Affiliates or Representatives in connection with such cooperation (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings other than such costs incurred in connection with the Marketing Material (preparation of the Required Information in the ordinary course of business consistent with past practice, which shall not, except to the extent otherwise provided in Section 6.7(d), be reimbursed). VI shall indemnify and hold harmless VE and its Affiliates from and against any and all Liabilities suffered or incurred by them in connection with the arrangement of the Financing and any information utilized in connection therewith in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements except to the extent so required (which audit reports shall not be subject to that any “going concern” qualifications), such Liabilities are suffered or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings incurred as a result of the applicable type;
(iii) providing to AbbVieVE’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries Affiliates’ or any of their respective Representatives’ gross negligence, bad faith, willful misconduct or material breach of this Agreement, as applicable. VE shall have the right to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (consent to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s its and its Affiliates’ logos in connection with the Financing (provided that such logos are used solely which consent shall not be unreasonably withheld, conditioned or delayed). Except for any confidential information required to be included in a manner that is not intended to and is not reasonably likely to harm any registration statement or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date prospectus in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulationsFinancing, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other otherwise confidential information provided regarding VE obtained by or on behalf of Allergan or any of its Subsidiaries or Representatives VI pursuant to this Section 7.9 to 6.6 shall be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan VI shall be permitted to share all information subject to such agreement with its potential underwriters and financing sources and their Representatives, subject to customary confidentiality undertakings reasonably satisfactory to VE being given by such potential underwriters and financing sources with respect thereto. Notwithstanding anything to the contrary in this Section 6.6, VI acknowledges and agrees that its obligation to consummate the confidentiality undertakings that will be obtained in connection with syndication Share Purchase on the terms and subject to the conditions set forth herein are not contingent on the arrangement of any debt or equity financing (including the Financing) or the receipt of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesproceeds therefrom.
Appears in 3 contracts
Sources: Transaction Agreement, Transaction Agreement (Visa Inc.), Transaction Agreement (Visa Inc.)
Financing Cooperation. (a) Until Prior to the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9Closing Date, Allergan shall use its reasonable best effortsSeller shall, and shall cause each of its Subsidiaries to use its reasonable best effortsthe General Partner and the Partnership Entities to, and shall use its commercially reasonable best efforts to cause its and their respective officersRepresentatives to, employees and advisors and other Representativesprovide such reasonable cooperation in connection with any financing by the Acquiror Parties or any of their respective Affiliates to finance the transactions contemplated by this Agreement, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance in each case as may be reasonably requested by AbbVie the Acquiror Parties. Without limiting the generality of the foregoing, but subject to Section 6.11(b), Seller shall, and shall cause the General Partner and the Partnership Entities to, and shall use commercially reasonable efforts to cause their respective Representatives to, upon reasonable request (i) furnish the report of the General Partner’s and the MLP’s auditor on the audited consolidated financial statements of the General Partner and the Partnership Entities and use commercially reasonable efforts to obtain the consent of such auditor to the use of such report, including in writing documents filed with the SEC under the Securities Act, in accordance with normal custom and practice and use commercially reasonable efforts to cause such auditor to provide customary comfort letters to the underwriters, initial purchasers or placement agents, as applicable, in connection with any such financing; (ii) furnish any additional financial statements, schedules, business or other financial data readily available and relating to the General Partner and the Partnership Entities reasonably requested by the Acquiror Parties or their respective Representatives as may be reasonably necessary to consummate any such financing; (iii) provide reasonable direct contact between (x) senior management and advisors, including auditors, of the General Partner and the Partnership Entities and (y) the proposed lenders, underwriters, initial purchasers or placement agents, as applicable, and/or the Acquiror Parties’ auditors, as applicable, in connection with, the financing, at reasonable times and upon reasonable advance notice; (iv) make available senior management of the General Partner to provide reasonable assistance with the Acquiror Parties’ preparation of business projections, financing documents, pro forma financial information, pro forma financial statements and offer materials; (v) cooperate with the Acquiror Parties’ legal counsel in connection with customary legal opinions that is the Acquiror Parties’ legal counsel may be required to deliver in connection with such financing; (vi) provide customary information, documents, authorization letters, opinions and certificates, enter into customary agreements (including indentures or supplemental indentures) and take other actions that are customary in connection with the arrangingfinancing and necessary to permit the Acquiror Parties to fulfill conditions or obligations under the financing documents; provided that such agreements entered into shall be conditioned upon, obtaining and syndication of shall not take effect until, the Financing, including using reasonable best efforts with respect to:
Closing Date; (ivii) participating assist in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank one or more confidential information memoranda, prospectuses, rating agency presentations offering memoranda and similar documents required in connection with other marketing and syndication materials reasonably requested by the Financing Acquiror Parties; (collectively, “Marketing Material”viii) and due diligence sessions related thereto, (C) delivering and consenting to permit the inclusion or incorporation in any SEC filing related to the Financing Acquiror Parties’ reasonable use of the historical audited consolidated financial statements MLP’s logos for syndication and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each caseunderwriting, as applicable, in connection with any such financing (subject to customary confidentiality provisions advance review of and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) consultation with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualificationssuch use), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (; provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan the General Partner or its Subsidiaries any of the Partnership Entities or the reputation or goodwill of Allergan the General Partner or any of its Subsidiariesthe Partnership Entities; (ix) participate in a reasonable number of meetings and presentations with prospective lenders and investors, as applicable (including the participation in such meetings of the General Partner’s senior management); and
and (x) providing at least three (3) Business Days use commercially reasonable efforts to assist in advance of procuring any necessary rating agency ratings or approvals. Neither the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulationsGeneral Partner, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries Partnership Entity shall be required to take make any representation or permit warranty in connection with any financing by the taking Acquiror Parties or any of any action their respective Affiliates to finance the transactions contemplated by this Agreement prior to the Closing Date (other than in a customary authorization and representation letter).
(b) Notwithstanding anything in this Section 6.11 to the contrary, in fulfilling its obligations pursuant to this Section 7.9(a) or Section 7.9(b) below to 6.11, (i) pay neither the General Partner, nor any commitment or other fee or incur Partnership Entity shall be required to provide any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to cooperation under this Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) 6.11 to the extent required by Section 7.9(b), applicable Allergan Supplemental Indenturesthat such cooperation would (A) unreasonably interfere with the ongoing operations of the General Partner or the Partnership Entities, (yB) customary officers’ certificates relating cause any condition to closing set forth in Article VII of this Agreement to fail to be satisfied or otherwise cause any breach of this Agreement, (C) require the execution thereof Seller, the General Partner or any Partnership Entity to take any action that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or violate any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan their Organizational Documents or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not Law or result in the loss of any legal or other privilege or (D) result in any officer or director of the Seller, the General Partner or any Partnership Entity incurring any personal liability with respect to any matters relating to any such privilegefinancing; and (ii) the Acquiror Parties shall, promptly upon request by Seller, reimburse Seller for all reasonable and documented out-of-pocket costs incurred by Seller, the General Partner or the Partnership Entities (and their respective Representatives) in connection with such cooperation. Each of the Acquiror Parties acknowledges and agrees that neither the General Partner nor any Partnership Entity shall incur any liability to any Person under any financing by the Acquiror Parties or any of their respective Affiliates or any cooperation provided under this Section 6.11 prior to the Closing Date (other than to the extent related to information provided to the Acquiror Parties in writing by Seller pursuant to this Section 6.11). The Acquiror Parties shall indemnify and hold harmless Seller, (iv) deliver the General Partner and the Partnership Entities from and against any and all losses or cause its Representatives to deliver any legal opinion damages actually suffered or negative assurance letter (except, incurred by them directly in connection with the entry into an Allergan Supplemental Indenture required arrangement of any such financing (other than to the extent related to information provided by Section 7.9(b)Seller, Allergan shallthe General Partner, and shall cause its Subsidiaries to, use the Partnership Entities or their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith Representatives).
(provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (vc) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty Notwithstanding anything in this Agreement to be breached the contrary, in no event will the financing contemplated by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach ofthis Section 6.11, or a default under, any material Contract to which Allergan or any compliance by the Parties with the provisions of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 6.11, be deemed to be kept confidential or operate in accordance with any way as a condition to the Confidentiality Agreement; provided, that Allergan acknowledges Closing or to modify the representations and agrees that the confidentiality undertakings that will be obtained in connection with syndication warranties of the Financing will be Acquiror Parties set forth in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesSection 5.6.
Appears in 3 contracts
Sources: Purchase Agreement (USA Compression Holdings, LLC), Purchase Agreement (Energy Transfer Equity, L.P.), Purchase Agreement (Energy Transfer Partners, L.P.)
Financing Cooperation. (a) Until Prior to the earlier of Effective Time, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsPartnership Entities shall, and shall cause each of its their Subsidiaries to use its reasonable best effortsto, and shall use its their reasonable best efforts to cause its and their respective officersRepresentatives to, employees provide all customary and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance cooperation in connection with the arrangement of the financing contemplated by the Debt Commitment Letter (the “Debt Financing”) as may be reasonably requested by AbbVie in writing Parent (provided that is customary in connection such requested cooperation does not unreasonably interfere with the arranging, obtaining and syndication business or operations of the FinancingPartnership Entities and their respective Subsidiaries), including using (a) participation at reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority times in a reasonable number of meetings, presentations, road showsroadshows (including customary one-on-one meetings), drafting sessions, rating agency and due diligence sessions with the Financing Sources and sessions potential lenders or investors in the Debt Financing, including direct contact between senior management and the other representatives of the Partnership Entities and their respective Subsidiaries, on the one hand, and the actual and potential Financing Sources and potential lenders or investors in the Debt Financing, on the other hand, in each case with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable advance notice, (Bb) reasonably assisting with AbbVie’s Parent and its Financing Sources in the preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar lender and investor presentations, business projections, pro forma financial statements, bank books and other marketing documents required in connection with the Financing (collectivelycustomarily used to arrange debt financing, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in identifying any SEC filing related to the Financing portion of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization lettersinformation contained therein that would constitute material, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary non-public information with respect to Allergan the Partnership Entities or any of their respective Subsidiaries or any of their respective securities for purposes of foreign, United States federal or state securities laws, (c) (i) furnishing Parent with the Required Information and its Subsidiaries (Aii) using reasonable best efforts to furnish any other information regarding the Retained Companies as may be reasonable requested by Parent that is customary or necessary for the preparation of a customary confidential information memorandum for financings that are similar to the Debt Financing, (d) using reasonable efforts to facilitate the granting of a security interest (and perfection thereof) in collateral, guarantees, mortgages, other definitive financing documents or other certificates or documents as may reasonably be requested by Parent, including obtaining releases of existing Liens; provided, that any obligations and releases of Liens contained in all such agreements and documents shall be subject to the occurrence of the type that would be required by Regulation S-X Effective Time and Regulation S-K under become effective no earlier than immediately following the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities ActEffective Time, including audit reports of annual financial statements (e) to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie Parent at least ten (10) Business Days in advance of days prior to the Completion Date in connection with Effective Time, furnishing within 5 days prior to the Financing that relates to Effective Time all documentation and other information required by Governmental Authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationthe U.S.A. Patriot Act of 2001, but in each case, solely as relating to the Partnership Entities and their respective Subsidiaries, (f) assisting in the preparation of definitive financing documents as may be reasonably requested by Parent, (g) reasonably cooperating in satisfying the conditions precedent set forth in the Debt Commitment Letter or any definitive document relating to the Debt Financing to the extent the satisfaction of such condition requires the cooperation of, or is within the control of the Partnership Entities and their respective Subsidiaries, (h) taking all corporate actions, subject to the occurrence of the Effective Time, as reasonably requested by Parent to permit the consummation of the Debt Financing, and (i) permitting the prospective lenders or investors involved in the Debt Financing to conduct customary due diligence. The Partnership hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided, that such logos are used solely in a manner that is not intended, nor reasonably likely to, harm or disparage the Partnership Entities or any of their respective Subsidiaries.
(b) If, prior to the Effective Time, Parent decides to commence a tender offer and/or consent solicitation in respect of some or all of the outstanding Partnership Senior Notes (each, a “Debt Offer”), Parent shall prepare all necessary and appropriate documentation in connection with such Debt Offers, including the offers to purchase and consent solicitation statements, letters of transmittal and other related documents (collectively, the USA PATRIOT ACT“Offer Documents”). Notwithstanding anything to The closing and effectiveness of any tender offer shall be expressly conditioned on the contrary in this Section 7.9(a) or Section 7.9(b) belowoccurrence of the Closing at the Effective Time, (A) and none of Allergan nor any of its Subsidiaries the Partnership Senior Notes shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective purchased prior to the Completion Date or would be effective if the Completion does not occur (except (x) Effective Time. The Partnership agrees to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating use reasonable best efforts to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shallprovide, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Subsidiaries and its and their respective Representatives to deliver any legal opinion or negative assurance letter (exceptprovide, reasonable cooperation in connection with the entry into preparation of the Offer Documents and the consummation of such Debt Offers to the extent requested by Parent, including with respect to the Partnership Entities’ execution of supplemental indentures reflecting amendments to the indentures applicable to the Partnership Senior Notes subject to any Debt Offer, to the extent approved by any required consents of holders of such Partnership Senior Notes (provided that either (x) the effectiveness of such supplemental indentures shall be expressly conditioned on the occurrence of the Closing at the Effective Time or (y) any amendments effectuated by such supplemental indentures shall not become operative until immediately prior to the Effective Time on the Closing Date). All Offering Documents and all mailings to the holders of the Partnership Senior Notes in connection with the Debt Offers shall be subject to the prior review and comment by the Partnership and Parent and shall be reasonably acceptable to each of them. If at any time prior to the completion of any Debt Offer any information in the applicable Offer Documents should be discovered by the Partnership or Parent that should be set forth in an Allergan Supplemental Indenture amendment or supplement to the Offer Documents, so that such Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required by Section 7.9(b)to be stated therein or necessary in order to make the statements therein, Allergan shallin light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement describing such information shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel be disseminated by Parent to the trustee under holders of the applicable Indenture that Partnership Senior Notes.
(c) Regardless of whether Closing occurs, (i) promptly upon the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan Partnership Entities’ request, all reasonable out-of-pocket fees and expenses incurred by the Partnership Entities, their subsidiaries and their Affiliates in connection with assisting in the Debt Financing, the Debt Offers, or the activities set forth in this Section 7.16 shall be paid or reimbursed by Parent and (ii) Parent shall indemnify and hold harmless the Partnership Entities and their Subsidiaries and their Affiliates from and against any liability or obligation suffered or incurred by them in connection with the Debt Financing, the Debt Offers or the activities set forth in this Section 7.16, and any information utilized in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect than historical information relating to the Partnership Entities and their Subsidiaries provided by the Partnership Entities in writing specifically for use in the Debt Financing prior offering documents or the Offer Documents).
(d) Notwithstanding anything in this Section 7.16 to the Completioncontrary, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except other than in connection with the execution and delivery of any applicable Allergan Supplemental Indentures)supplemental indenture contemplated by clause (b) of this Section 7.16 and any related officer’s certificates, and (Ci) neither Allergan the Partnership Entities nor any of its their respective Subsidiaries shall be required to take or permit the taking of incur any action that would (i) interfere unreasonably liability in connection with the business Debt Financing or operations of Allergan or its Subsidiariesthe Debt Offers prior to the Effective Time, (ii) cause any representation neither the Parent Entities or warranty their Subsidiaries will be required to pass resolutions or consents in this Agreement to be breached by Allergan connection with the Debt Financing or the Debt Offers other than resolutions or consents adopted at the Effective Time and (iii) none of the Partnership Entities or any of its their respective Subsidiaries (unless waived by AbbVie)shall be required to execute any definitive financing document, (iii) cause including any directorcredit or other agreement, officer pledge or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach ofsecurity document, or a default under, any material Contract to which Allergan other certificate or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained document in connection with syndication the Debt Financing the effectiveness of which is not contingent upon the occurrence of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesClosing.
Appears in 3 contracts
Sources: Merger Agreement (Targa Resources Corp.), Merger Agreement (Atlas Pipeline Partners Lp), Merger Agreement (Atlas Energy, L.P.)
Financing Cooperation. (a) Until From the earlier of date hereof until the Completion and Closing, the valid termination of this Agreement pursuant to and in accordance with Article 9Partnership shall, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its and their respective officersRepresentatives to provide, employees on a timely basis, at Parent’s and advisors Merger Sub’s sole cost and other Representativesexpense, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be all customary cooperation reasonably requested by AbbVie Parent or Merger Sub or any Financing Source to assist Parent, Merger Sub and their Affiliates in writing that is customary causing the conditions to any bank debt financing or any capital markets debt or equity financing deemed necessary or appropriate by the Parent or Merger Sub including, among other things, for the purposes of financing the payment of the Common Unit Consideration, refinancing any existing indebtedness of the Partnership and its Subsidiaries, and any other amounts required to be paid in connection with the arrangingconsummation of the Transactions (collectively, obtaining the “Financing”) to be satisfied, which requested cooperation may include, without limitation:
(i) providing reasonable cooperation with customary syndication or other marketing efforts, or a customary offering, of Parent and syndication Merger Sub for all or any portion of the Financing, including using reasonable best efforts access to documents and other information in connection with respect to:
(i) participating in customary due diligence investigations, and assisting with if required by the due diligenceFinancing Sources, syndication or other marketing of the Financingcausing its management team, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority and expertise, to assist in a reasonable number of meetings, presentations, road shows, drafting sessionsmarketing materials, due diligence sessions, drafting sessions and sessions with prospective lendersrating agencies and allowing the syndication efforts to benefit from existing banking relationships;
(ii) upon reasonable advance notice and during normal business hours, investors (A) providing Parent, Merger Sub and/or the Financing Sources with (x) audited combined balance sheets and related statements of income and cash flows of the Partnership and its consolidated subsidiaries for the two most recently completed fiscal years ended at least 90 days prior to the Closing Date and (y) unaudited combined balance sheets and related statements of income and cash flows of the Partnership and its consolidated subsidiaries for each fiscal quarter ended after the most recent audited financial statements delivered pursuant to clause (x) and furnishing to Parent, Merger Sub and/or the Financing Sources, upon their reasonable request therefor, such other information regarding the Partnership, including other financial information reasonably necessary for the preparation of pro forma financial statements and information regarding the Partnership’s current assets, cash management and accounting systems, policies and procedures relating thereto for purposes of establishing collateral arrangements as of the Closing and to assist with other collateral audits and due diligence examinations, and (B) providing reasonable assistance to Parent’s preparation of pro forma financial information and projections required to consummate the Financing;
(iii) no later than March 16, 2021, providing the Partnership’s audited consolidated financial statements, including a balance sheet, statements of operations, stockholders’ equity and cash flows as of and for the fiscal year ended December 31, 2020;
(iv) upon reasonable advance notice and during normal business hours, providing reasonable assistance to Parent and Merger Sub (including by causing its management team, with appropriate seniority and expertise to participate in a reasonable number of meetings, presentations, drafting sessions and sessions with the Financing Sources and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s in the preparation of customary materials for registration statementsrating agency presentations, road show materials, lender information memoranda and other presentations, prospectuses and bank syndication materials, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations memoranda and similar documents required (which may incorporate, by reference, periodic and current reports filed by the Partnership with the SEC) in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in marketing of any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications)syndication, or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements a customary for Financings offering, of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery all or a portion of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens furnishing Parent and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing Merger Sub at least three four (34) Business Days in advance of prior to the Completion Closing Date such with all documentation and other information about Allergan required and its Subsidiaries as is reasonably requested in writing by AbbVie the parties acting as lead arrangers for, or lenders under, the Financing at least ten (10) Business Days in advance of prior to the Completion Date in connection with the Financing that relates to Closing under applicable “know your customer” and anti-money laundering rules and regulationsregulations and the USA Patriot Act of 2001;
(vi) requesting that the Partnership’s independent accountants participate in accounting due diligence sessions and cooperate with the Financing consistent with their customary practice, including without limitationrequesting that the Partnership’s independent accountants provide customary comfort letters (including “negative assurance” comfort, if permitted) and consents for use of their reports to the USA PATRIOT ACT. extent required in connection with the marketing and syndication of the Financing or as are customarily required in an offering of debt, equity or equity-linked securities;
(vii) cooperation with Parent and Merger Sub and their respective efforts to obtain customary corporate, facilities and securities ratings;
(viii) providing customary authorization letters to the arrangers in respect of the Financing authorizing the distribution of information to prospective lenders;
(ix) subject to Section 5.12(b), taking all reasonable and customary partnership action, corporate action, limited liability company action or other organizational action, as applicable, subject to the occurrence of the Closing, necessary to permit and/or authorize the consummation of the Financing;
(x) reasonable facilitation (through providing and executing customary agreements, documents or certificates) of the pledge and perfection of liens and security interests in connection with the Financing, as may be reasonably requested by Parent and/or Merger Sub (provided that no obligation under any such document or agreement will take effect until the Closing);
(xi) providing all cooperation that is reasonably necessary to satisfy the conditions precedent to any documents relating to the Financing, but solely to the extent the satisfaction of such conditions requires the cooperation of, or is within the control of the Partnership, its Subsidiaries or its Representatives, including ensuring that any financial information is compliant with applicable SEC rules and requirements, and compliant with customary required terms of a debt commitment letter or similar document and updated as necessary to avoid staleness in accordance with applicable SEC rules and requirements, and free of any material misstatement or omission;
(xii) otherwise providing cooperation that is customary and reasonable in connection with the marketing efforts of Parent, Merger Sub and the Financing Sources; and
(xiii) the use of its trademarks and logos in connection with the Financing; provided, that such trademarks and logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Partnership or any of its Affiliates or the reputation or goodwill of the Partnership or any of its Affiliates.
(b) Notwithstanding anything in this Agreement to the contrary in this Section 7.9(a) or Section 7.9(b) below, contrary:
(Ai) none of Allergan nor the Partnership, its Affiliates or their respective Representatives (at any of its Subsidiaries time) shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee similar fee, incur or reimburse any costs or expenses or incur any other liability or obligation of any kind that is effective prior to the occurrence of the Closing or give any indemnities prior to the Closing in connection with the Financing (other than thirdexcept reasonable and documented out-party of-pocket costs and expenses that are to be the extent Parent or Merger Sub promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(creimburses the Partnership therefor)), ;
(ii) execute or deliver any definitive financing documents none of the Partnership or any other agreementof the Affiliates shall be required to (A) execute, certificateenter into, document approve or instrumentperform any binding agreement or commitment, or agree to any change to or modification of any existing agreement, binding agreement or commitment or incur any other actual or potential liability or obligation in connection with the Financing that is not subject to the occurrence of the Closing or (B) adopt any resolution or otherwise take any corporate or similar action or deliver any certificate, document approving or instrument, in each case authorizing the Financing that would be is effective prior to the Completion Date Closing;
(iii) nothing shall obligate the Partnership or would any Affiliate to provide, or cause to be effective if the Completion does not occur (except (x) provided, any legal opinion or to provide, or cause to be provided, any information or take, or cause to be taken, any action to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, doing so could reasonably be expected to (yA) customary officers’ certificates relating to the execution thereof that would not result in a conflict with or a violation of applicable Law and would be accurate in light of Law, the facts and circumstances at Partnership’s or any Affiliate’s organizational documents or any agreement binding on the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Partnership or any of its Subsidiaries reasonably determines would Affiliates or any confidentiality obligations binding on the Partnership or any of its Affiliates, (B) subject the Partnership to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment (other than documented and reasonable out-of-pocket costs that are reimbursed by Parent or Merger Sub) or incur any other liability of any kind or provide or agree to provide any indemnity, (C) subject any director, manager, officer or employee of the Partnership or any of its Affiliates to any actual personal liability or (D) jeopardize any attorney-client privilege privilege; and
(iv) no action, liability or obligation (including any obligation to pay any commitment or other fees or reimburse any expenses) of Allergan the Partnership and its Representatives under any certificate, agreement, arrangement, document or instrument relating to the Financing shall be effective until the Closing.
(c) The Partnership and its Representatives shall not be obligated in connection with performing their obligations under this Section 5.12 to take or refrain from taking any action that would unreasonably interfere with ongoing business or operations of the Partnership or any of its Subsidiaries Affiliates. Parent and/or Merger Sub shall promptly, upon request by the Partnership, reimburse the Partnership for all reasonable and documented out-of-pocket costs and expenses incurred by the Partnership or any of the Affiliates in connection with the cooperation of the Partnership, the Affiliates and their respective Representatives contemplated by this Section 5.12 and shall indemnify and hold harmless the Partnership, the Affiliates 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 (1) such cooperation, (2) the Financing, (3) any information used in connection with the Financing (except with respect to written information provided by the Partnership or any of the Affiliates specifically for inclusion in offering materials relating to the Financing) and (4) any action taken by any of them at the request of Parent, Merger Sub or the Financing Sources pursuant to this Section 5.12, except to the extent such losses, damages, claims, costs or expenses arose from the gross negligence, bad faith, material breach or willful misconduct of the Partnership, its Affiliates or their Representatives. Notwithstanding anything in this Agreement to the contrary, the condition set forth in Section 6.02(b), as it applies to obligations of the Partnership under this Section 5.12, shall be deemed satisfied if (1) any breach by the Partnership of its obligations under this Section 5.12 did not cause the failure of the Financing to be obtained or (2) Parent and/or Merger Sub do not have the right to terminate this Agreement pursuant to Section 7.01 as a result of any breaches of this Section 5.12 by the Partnership. The obligations of Parent and Merger Sub under this Section 5.12(c) shall survive the termination of this Agreement.
(d) Each of Parent and Merger Sub acknowledges and agrees that Allergan the Partnership, its Affiliates and their respective Representatives have no responsibility for any financing that Parent or Merger Sub may raise in connection with the Transactions. Any offering materials and other documents prepared by or on behalf of or utilized by Parent, Merger Sub or their Affiliates, or any Person providing the Financing to Parent or Merger Sub, in connection with Merger Sub’s financing activities in connection with the Transactions, which include any information provided by the Partnership or any of its Affiliates or Representatives, including any offering memorandum, banker’s book, prospectus or similar document used, or any other written offering materials used, in connection with any Financing, shall include a conspicuous disclaimer to the effect that neither the Partnership, nor any of its Affiliates or Representatives nor any employees thereof has any responsibility for the content of such document and disclaim all responsibility therefor and shall further include a disclaimer with respect to the Partnership and its Affiliates and Representatives in any oral disclosure with respect to such Financing.
(e) All non-public or other confidential information obtained by Parent or Merger Sub, its Representatives or any Person in connection with the Financing and pursuant to this Section 5.12 shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Merger Sub shall be permitted to disclose such information to any Person providing the Financing, rating agencies and prospective lenders and investors during syndication or other marketing efforts relating to the Financing, subject to the rating agencies and prospective lenders and investors entering into customary confidentiality undertakings with respect to such information (including through a notice and undertaking in a form customarily used in confidential information memoranda for senior credit facilities), and to potential investors in a customary offering memorandum and related materials used in connection with an offering of debt or equity securities used to finance the consummation of the Transactions.
(f) Through the earlier of the Closing and the date on which this Agreement is terminated in accordance with Article VII, if reasonably requested by Parent, the Partnership shall provide commercially reasonable cooperation to Parent and Merger Sub in taking such actions as are necessary, proper or advisable under any existing indebtedness listed on Section 5.12(f) of the Partnership Disclosure Schedule (collectively, “Existing Debt Documents”) in respect of the Transactions, including delivering or causing a Subsidiary to deliver any such notices, agreements, amendments, releases, consents documents or instruments necessary, proper or advisable to comply with the terms thereof, including the delivery of any officer certificates and opinions of counsel required to be delivered thereunder in connection with the Transactions or as otherwise reasonably requested as it relates to the ongoing operations and business of the Partnership or the Parent and their respective Subsidiaries. If and to the extent reasonably requested by Parent in writing, the Partnership shall provide commercially reasonable cooperation to Parent and Merger Sub either (A) in arranging for the termination of Existing Debt Documents (and the related repayment or redemption thereof, including the making of a tender offer, with respect to outstanding letters of credit, the cash collateralization thereof or the providing of “backstop” letters of credit with respect thereto) at the Closing (or such other date thereafter as agreed to by Parent and the Partnership), which repayment, redemption, cash collateralization or providing of “backstop” letters of credit shall be the sole responsibility of Parent, and the procurement of customary payoff letters and other customary release documentation in connection therewith or (B) obtaining any consents required under any Existing Debt Documents to permit early redemption, prepayment or the consummation of the Transactions thereunder and obtaining any amendments to or other consents under the Existing Debt Documents as may be reasonably requested by Parent, and in each case, if reasonably requested by Parent, the Partnership shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any execute and deliver such information to be disclosed in a manner that would not result in the loss of any such privilege)customary notices, (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules.co
Appears in 3 contracts
Sources: Merger Agreement (New Fortress Energy Inc.), Merger Agreement (Golar LNG LTD), Merger Agreement (Golar LNG Partners LP)
Financing Cooperation. (a) Until Prior to the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9Closing, Allergan shall use its reasonable best effortsSeller shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its and their respective officersRepresentatives to, employees provide all cooperation and advisors and other Representativesinformation, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be in each case that is reasonably requested by AbbVie in writing that is customary Purchaser in connection with the arranging, obtaining and syndication of the Financing, including using reasonable best efforts with respect toincluding:
(i) participating furnishing to Purchaser such information regarding the Business as is reasonably requested in and assisting writing by Purchaser (A) in connection with the due diligence, syndication arrangement or other marketing consummation of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation reasonably necessary to permit Purchaser to prepare pro forma financial statements customarily included in marketing and offering documents for an offering of customary materials for securities of Purchaser on a registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection statement filed with the Financing (collectivelySEC, “Marketing Material”) and due diligence sessions related thereto, or (C) delivering and consenting necessary to satisfy the inclusion or incorporation conditions set forth in any SEC filing related the Debt Commitment Letter;
(ii) furnishing to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering Parties customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material letters (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie authorizing the distribution of information and its containing a customary representation to the Financing Sources with historical financial and other customary Parties that the public side versions of such documents, if any, do not include material non-public information (collectivelyabout the Business, the “Financing Information”) with respect to Allergan and Seller, its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable typetheir respective securities;
(iii) providing using reasonable best efforts to AbbViecause Seller’s legal counsel independent accountants to provide customary assistance and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be cooperation reasonably requested by Purchaser with any offering of securities, including participating in connection with their delivery of customary due diligence sessions and providing any customary “comfort” letters (including customary “negative assurance opinions and customary assurance” comfort letters relating to the for any applicable Financing);
(iv) causing Allergan’s independent auditors reasonably assisting Purchaser in the preparation of customary offering and marketing documents (and any supplements thereto) in connection with any Financing, including designating whether any information provided to provide customary cooperation with the FinancingPurchaser constitutes material non-public information;
(v) obtaining reasonably cooperating with any customary due diligence process as reasonably requested by Purchaser or the consents Financing Parties, including participating in a reasonable number of Allergan’s independent auditors to use their audit reports on due diligence sessions, and cooperating with the audited Historical Financial Statements customary marketing efforts of Allergan and to references to such independent auditors as experts Purchaser, in any Marketing Material and registration statements and related government filings filed or used each case, in connection with the any Financing;; and
(vi) obtaining Allerganreasonably cooperating with Purchaser’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos legal counsels in connection with the Financing (provided any legal opinions that such logos are used solely in a manner that is not intended legal counsels may be required to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date deliver in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesFinancing.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Broadcom Inc.), Asset Purchase Agreement (Symantec Corp)
Financing Cooperation. (a) Until Prior to the earlier of Closing, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Company shall use its reasonable best effortsefforts to provide, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and each of their respective officers, employees and advisors and other Representatives, including legal and accounting advisorsRepresentatives to use reasonable best efforts to provide, to use their reasonable best effortsParent, to provide to AbbVie Guarantor and its Subsidiaries such assistance Merger Sub, at Guarantor’s sole cost and expense, all cooperation on a timely basis as may be reasonably requested by AbbVie in writing that is customary Parent or its Representatives in connection with obtaining the arrangingDebt Financing and the arrangement, obtaining syndication and syndication of the Financingconsummation thereof, including using reasonable best efforts with respect to:
(i) participating in participating, and assisting with the due diligence, syndication or other marketing causing appropriate advisors of the Financing, including using reasonable best efforts with respect to (A) the participation by Company and appropriate members of management of Allergan the Company and its Subsidiaries with appropriate seniority and expertise to participate, in a reasonable number of calls, meetings, presentations, due diligence sessions, road shows, and drafting sessions, due diligence sessions and sessions with prospective lendersRepresentatives of Guarantor, any Debt Financing Sources (or, in connection with syndication efforts for the Debt Financing, Persons who may become Debt Financing Sources), investors and rating agenciesagencies (as the case may be), at reasonable times and at locations reasonably acceptable to Allergan and upon with reasonable advance notice, and in each case which may be virtual; (Bii) assisting with AbbVie’s in the preparation of customary (A) materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, any rating agency presentations and similar (B) any syndication documents required in connection with the Financing and materials, including lender and investor presentations, rating and bank books, information memoranda (collectively, “Marketing Material”confidential and public) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Syndication Documentation”), including by providing all documentation and information within the Company’s possession or control for due diligence purposes reasonably requested by ▇▇▇▇▇▇, Guarantor or their respective Representatives in connection with such Debt Financing; (iii) (A) cooperating with advisors, consultants and accountants of Parent, Guarantor and the Debt Financing Information”Sources or potential sources of such Debt Financing (or their designees) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie the conduct of any audit, examination, appraisal or its Financing Sources and customarily required in Marketing Material for Financings review of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) financial condition or any of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), assets or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings liabilities of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan Company or any of its Subsidiaries to be repaid and policies and procedures relating thereto (and providing all relevant information or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected therebydocumentation reasonably requested in connection therewith), including customary payoff letters for the purpose of establishing collateral eligibility and values; (B) assisting Parent and Guarantor to establish or maintain cash management procedures and/or bank accounts in connection with any Debt Financing; and (C) cooperating with any back stop, “roll over” or termination of any existing letters of credit in connection with any Debt Financing Documents (it being understood and agreed that any prepayment and/or redemption are (and shall be) contingent upon the occurrence of the Closing and no actions shall be required which would obligate the Company or its Subsidiaries to complete such prepayment or redemption prior to the occurrence of the Closing); (iv) to the extent required) evidence that notice customary and not prohibited by applicable Law, assisting and facilitating the granting of guaranty, security interest or pledging of collateral related to such Debt Financing (and any such repayment has been timely delivered to the holders perfection of such indebtednesssecurity interests or collateral pledges); provided, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice collateral to be pledged or payoff letter shall security interest to be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos granted by Parent, Guarantor or Merger Sub in connection with such Debt Financing that in any manner involves the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or Company, any of its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries)their respective assets shall not be effective prior to the Effective Time; and
(xv) providing at least three (3) Business Days in advance of the Completion Date such as promptly as reasonably practicable furnishing Parent, Guarantor and their respective Representatives promptly with all documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date required in connection with the such Debt Financing that relates to under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationthe PATRIOT Act; (vi) as promptly as reasonably practicable furnishing Parent, Guarantor and their respective Representatives with the USA PATRIOT ACT. Notwithstanding anything Financing Information; (vii) assisting in the preparation and facilitating the execution and delivery (in the case of execution and delivery, solely to the contrary extent any such execution would only be effective on or after the Closing Date) of any definitive financing documentation required in connection with the Debt Financing and the schedules and exhibits thereto, in each case, required to be delivered under such definitive financing documentation, including credit agreements (or joinders thereto), pledge and security documents, mortgages, schedules, and other definitive financing documents and deliverables, including providing factual information in connection with any of the foregoing; (viii) providing customary authorization letters authorizing the distribution of information relating to the Company and its Subsidiaries to any Debt Financing Source and containing a customary representation to the Debt Financing Sources as to the presence or absence of material non-public information relating to the Company and its Subsidiaries; (ix) authorizing ▇▇▇▇▇ Fargo Capital Finance, LLC, as administrative and collateral agent under its Existing Credit Facility, to share with the Debt Financing Sources the field exams, appraisals and other information relating to the Company’s assets and operations delivered from time to time pursuant to the Existing Credit Facility and coordinating the actual delivery of such field exams, appraisals and other information to the Debt Financing Sources; (x) assisting Guarantor in procuring public ratings (but no specific ratings) for the component of the Debt Financing consisting of a term loan facility from each of Standard & Poor’s Financial Services LLC (“S&P”) and ▇▇▇▇▇’▇ Investors Service, Inc. (“▇▇▇▇▇’▇”), and a public corporate credit rating (but no specific rating) and a public corporate family rating (but no specific rating) in respect of the borrower under such Debt Financing and after giving effect to the Transactions from each of S&P and Moody’s, respectively and (xi) ensuring that any syndication efforts for the Debt Financing benefit materially from the Company’s and its Subsidiaries’ existing lending and investment banking relationships.
(b) Nothing in this Section 7.9(a) 6.16 will require the Company or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) waive or amend any terms of this Agreement, pay any commitment or other fee or incur similar fee or agree to pay any liability (other than third-party costs and fees or reimburse any expenses that are or otherwise issue or provide any indemnities prior to be promptly reimbursed the Closing Date, for which it has not received prior reimbursement or is not otherwise indemnified or entitled to reimbursement by AbbVie upon request by Allergan pursuant to Section 7.9(c)), or on behalf of Guarantor; (ii) execute or deliver take any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrumentaction that, in each case that the good faith determination of the Company, would unreasonably interfere with the conduct of the business of the Company in any material respect; (iii) execute any Contract, adopt any resolutions, execute any consents or otherwise take any corporate or similar action to be effective prior to the Completion Date Closing (other than customary authorization and representation letters contemplated in connection with any Syndication Documentation) (and, in each case, only by their respective directors, officers, managers or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances other Persons holding similar positions at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Company or any of its Subsidiaries reasonably determines who are expected to continue to hold such positions following the Closing); (iv) take any action that would jeopardize result in any attorney-client privilege employee, officer or director of Allergan the Company or any of its Subsidiaries incurring any personal liability with respect to any matters relating to the Debt Financing; (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (ivv) deliver or cause its Representatives to deliver provide any legal opinion on or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the CompletionClosing that is not contingent upon the Closing or that must be effective prior to the Effective Time (other than customary representation letters, financial officer certificates and bank authorization letters); (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably conflict with the business or operations of Allergan or violate its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan Organizational Documents or any of its Subsidiaries (unless waived by AbbVie), (iii) cause applicable Law in any director, officer material respect or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) would result in a material violation or breach of, or a default under, any material Contract to which Allergan the Company or any of its Subsidiaries is a party; or (vii) disclose or provide any information the disclosure to the extent it could result in (x) a loss or waiver of any privilege or (y) in the disclosure of any Trade Secrets not otherwise required to be provided under this Agreement or the violation of any confidentiality obligation; provided, however, that the Company, the Organizational Documents Company’s Subsidiaries and their respective Representatives shall use reasonable best efforts to provide an alternative means of Allergan disclosing or providing such information, and in the case of any confidentiality obligation, the Company or such Subsidiary shall, to the extent permitted by such confidentiality obligations, notify Guarantor if any such information that Guarantor has specifically identified and requested is being withheld as a result of any such obligation of confidentiality.
(c) Promptly upon request (but in any event within 30 days thereafter) 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 Company in connection with the cooperation of the Company contemplated by this Section 6.16; provided that the Company (and not Parent) shall be responsible for any amounts that would otherwise have been incurred in the absence of the transactions contemplated by this Agreement.
(d) The Company will be indemnified and held harmless by ▇▇▇▇▇▇ and Guarantor 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 their cooperation in arranging the Debt Financing pursuant to this Agreement or the provision of information utilized in connection therewith, in each case, other than as a result of (i) information relating to the Company and its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan the Company and its Subsidiaries in connection with the Debt Financing that is determined to be materially false or misleading or omit to state any material fact necessary to make the required information not materially false or misleading or (ii) fraud, bad faith, gross negligence or willful misconduct by or on behalf of such Person.
(e) The Company hereby grants to Guarantor a non-exclusive, non-sublicensable, non-transferable, royalty free, limited license to use the Marks included in the Company Intellectual Property prior to the Closing Date solely in connection with the Debt Financing; provided, that such Marks are used solely in a manner that is not intended to, and is not reasonably likely to, harm or disparage the Company or any of its Subsidiaries or Representatives pursuant their reputation. All uses of such Marks by Guarantor shall be in connection with business operations, products, services and materials of quality equivalent to or higher than those in connection with which the Marks were used prior to the date hereof, and Guarantor shall use the Marks in a manner consistent with the Company’s standards, quality, style and image, including in connection with the Company’s guidelines as may be provided from time to time in writing to Guarantor.
(f) Notwithstanding anything in this Section 7.9 Agreement to be kept confidential the contrary, each of Parent, Guarantor and ▇▇▇▇▇▇ Sub acknowledges and agrees that obtaining the Debt Financing is not a condition to the obligations of the parties to consummate the Merger in accordance with the Confidentiality terms and provisions of this Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules.
Appears in 2 contracts
Sources: Merger Agreement (SpartanNash Co), Merger Agreement (SpartanNash Co)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and The Company shall use its reasonable best efforts to provide, and to cause its Subsidiaries and each of their respective officers, employees and advisors and other Representatives, including legal and accounting advisorsRepresentatives to provide, to use their Parent and Purchaser, reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as cooperation that may be reasonably requested by AbbVie in writing Parent and Purchaser and that is customary necessary or customary, proper or advisable in connection with the arrangingarrangement of any loan transaction or capital markets debt financing (whether public or private) undertaken by Parent in contemplation of the consummation of the Transactions (any such financing, obtaining the “Financing”), including reasonable cooperation, in each case to the extent reasonably requested: (i) to provide, within a reasonable amount of time following such reasonable request, to Parent, Purchaser and syndication their financing sources material financial and other pertinent information with respect to the Company and its Subsidiaries and the Transactions, including information and projections prepared by the Company relating to the Acquired Companies and the Transactions, all financial information regarding the Acquired Companies required in connection with the preparation of the Finance Offering Documents and diligence documentation reasonably requested by persons in connection with the Financing; (ii) to cooperate with the marketing efforts of Parent, Purchaser and their financing sources for any of the Financing, including using causing its Representatives to participate, during normal working hours and upon reasonable best efforts with respect to:
(i) participating notice, in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable a reasonable number of times; (iii) to Allergan and upon reasonable notice, (B) assisting assist with AbbVie’s the preparation of customary materials for registration statementsrating agency presentations, lender presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency road show presentations and similar documents required (including the preparation of pro forma financial statements meeting the requirements of SEC Regulation S-X) necessary, proper or advisable in connection with the Financing (collectively, the “Marketing MaterialFinance Offering Documents”); (iv) and due diligence sessions related thereto, (C) delivering and consenting to assist Parent in obtaining consents of the inclusion or incorporation Company’s auditors for use of their reports in any SEC filing related materials relating to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents customary “comfort letters” (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions assurances and customary comfort “bring-down” letters relating to from the Financing;
(iv) causing AllerganCompany’s independent auditors to provide accountants on customary cooperation with the Financing;
terms); and (v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of provide all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to required under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACTAct. Notwithstanding anything the foregoing, (i) no obligation of the Company or its Subsidiaries under any certificate, document or instrument executed pursuant to the contrary foregoing shall be effective until the Offer Acceptance Time (or such later time set forth in this Section 7.9(asuch certificate, document or instrument), and neither the Company nor its Subsidiaries nor any of their respective Representatives shall be required to take any action under any such certificate, document or instrument that is not contingent upon the consummation of the Offer (including the entry into any agreement that is effective before consummation of the Offer) or Section 7.9(b) belowthat would be effective prior thereto or take any corporate actions prior to the Closing, (Aii) none nothing herein shall require cooperation to the extent that such cooperation would, in the good faith determination of Allergan the Company, interfere unreasonably with the business or operations of the Company or its Subsidiaries, (iii) neither the Company nor any of its Subsidiaries shall be required to waive or amend any terms of this Agreement, (iv) neither the Company nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) that will conflict with or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing violate its organizational documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shallLegal Requirement, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to neither the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan Company nor any of its Subsidiaries shall be required to take issue any offering or permit information document (other than as required to comply with Company’s obligations pursuant to this Section 6.14). None of the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan Company or any of its Subsidiaries shall be required to take any action that would subject it to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment (unless waived other than reasonable out-of-pocket costs that will be reimbursed by AbbVie), (iiiParent pursuant to this Section 6.14) cause or incur any director, officer other liability or employee provide or shareholder of Allergan agree to provide any indemnity in connection with the Financing or any of the foregoing that would be effective prior to the Closing. The Company hereby consents to the use of the logos of the Company and its Subsidiaries to incur any personal liability in connection with the syndication or (iv) result marketing of the Financing; provided that such logos are used in a material violation manner that is reasonable and customary in connection with a Financing, and in any event, not intended to harm or breach ofdisparage the Company, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a partyor their marks.
(b) Parent shall, promptly upon written request by the Organizational Documents of Allergan Company, reimburse the Company for all reasonable out-of-pocket costs incurred by the Company or its Subsidiaries in connection with their cooperation and indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, settlements, costs or any applicable Law. AbbVie shall cause all non-public expenses (including reasonable attorneys’ fees) suffered or incurred by them to the extent such losses, damages, claims, interest, awards, judgments, penalties, settlements, costs or expenses arose out of the actions taken by the Company, its subsidiaries or their respective Representatives pursuant to this Section 6.14 (other confidential than information provided by the Company, its Subsidiaries or on behalf their respective Representatives in writing for express use therein), except in the event such losses, damages, claims, interest, awards, judgments, penalties, settlements, costs or expenses are determined by a final non-appealable judgment of Allergan a court of competent jurisdiction to have arisen out of or resulted from the gross negligence or willful misconduct of the Company, any of its Subsidiaries or Representatives any of their respective Representatives.
(c) Notwithstanding anything herein to the contrary, Parent and Purchaser acknowledge and agree that obtaining the Financing is not a condition to consummation of the Transactions, and that, irrespective and independently of the availability of the Financing, Parent and Purchaser shall be obligated to pay for the tendered Shares and consummate the Merger and the other Transactions as provided herein, subject to the satisfaction or waiver of the Offer Conditions or the conditions set forth in Section 7, as applicable. Notwithstanding anything in this Agreement to the contrary, the condition set forth in clause (c) of Annex I, as it applies to the Company’s obligations pursuant to this Section 7.9 to 6.14, shall be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesdeemed satisfied.
Appears in 2 contracts
Sources: Merger Agreement (Gilead Sciences Inc), Agreement and Plan of Merger (Kite Pharma, Inc.)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan The Company shall use its reasonable best effortsefforts to, and shall cause each of its Subsidiaries to use its reasonable best effortsefforts to, and shall use its reasonable best efforts to cause its and their respective officersRepresentatives to, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary in connection with the arranging, obtaining and syndication of the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries cooperation as is reasonably requested by AbbVie or its Parent, is necessary in connection with the Debt/Preferred Equity Financing Sources and customarily required provided for borrowers or issuers in Marketing Material for Financings financings of the type contemplated by the Debt Commitment Letter (or permanent take-out financing incurred in lieu of the bridge facility contemplated under the Debt Commitment Letter) or the Preferred Equity Commitment Letter, as applicable type(it being understood and agreed that such information shall not include any information customarily delivered by an investment bank, agent bank or lender in the preparation of such bank information memoranda or similar documents), including all Historical Financial Statements and other customary information with respect reasonable best efforts in (i) furnishing to Allergan and its Subsidiaries Parent (A) of the type that would be required by Regulation S-X Required Information and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma such other pertinent and customary financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan regarding the Company and its Subsidiaries as may be reasonably requested by Parent; provided that, in the case of this clause (B), the Company shall not be obligated to furnish any Excluded Information; (ii) prior to and during the Marketing Period, upon reasonable prior written notice and at reasonable times, cause members of management (with appropriate seniority) to participate in a reasonable number of meetings (in each case, which may be held via conference call), drafting sessions, rating agency presentations and due diligence presentations (including accounting due diligence sessions), presentations, “road shows” and sessions with prospective financing sources and investors, in each case at times and locations to be mutually agreed; (iii) in advance of and prior to the closing of the Marketing Period, providing reasonable assistance to Parent and its Debt/Preferred Equity Financing Sources in the preparation of customary bank information memoranda, lender or investor presentations, rating agency presentations, offering memoranda or private placement memoranda and other customary marketing materials in connection with their delivery the Debt/Preferred Equity Financing (collectively, the “Marketing Material”) including delivering upon request of any customary negative assurance opinions and customary comfort letters relating Parent prior to the Financing;
commencement of the marketing of the Debt/Preferred Equity Financing (A) customary executed authorization letter to accompany customary Marketing Materials regarding the material accuracy of information contained in such Marketing Materials with respect to the Company and its Subsidiaries and, with respect to any “public version” of such Marketing Materials, the lack of material non-public information with respect to the Company and its Subsidiaries therein and (B) customary executed management representation letters and CFO certificates with respect to the financial information included in the Marketing Materials for bond offerings; (iv) causing Allerganthe Company’s independent auditors to provide customary cooperation comfort letters (including “negative assurance” comfort) with respect to historical financial information of the Financing;
Company included in any offering memoranda with respect to any non-convertible high yield debt securities included in the Debt Financing issued on a “Rule 144A for life” basis; (v) assisting in the preparations for the pledging of collateral, including possessory collateral (it being understood that no such pledging of collateral will be effective until at or after the Closing), facilitating the obtaining of guarantees, and assistance in the consents preparation of Allergan’s independent auditors any definitive financing documents and other matters ancillary to use their audit reports on the audited Historical Financial Statements Debt Financing as may be reasonably requested by Parent, including by providing information for the completion of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed schedules or used in connection with the Financing;
certificates thereto; (vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
at least four (vii4) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating Business Days prior to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected therebyClosing Date, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms requested by Parent on behalf of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Debt/Preferred Equity Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least Sources no later than ten (10) Business Days in advance of prior to the Completion Date in connection with the Financing that relates to Closing Date, timely furnishing such documentation and other information required by Governmental Authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationthe U.S.A. Patriot Act of 2001, including beneficial ownership certificates; (vii) providing reasonable assistance to facilitate at (but not prior to) the USA PATRIOT ACTClosing the release of liens on assets of the Company (other than Permitted Liens) that are collateral for the Debt Financing, (viii) assisting Parent in obtaining any corporate or facility ratings from any ratings agencies contemplated by the Debt/Preferred Equity Financing and (ix) executing and delivering prepayment notices within the time periods contemplated by the Credit Agreement. Notwithstanding anything The Company hereby consents to the contrary use of the logos of the Company and its Subsidiaries in this Section 7.9(aconnection with such Debt/Preferred Equity Financing; provided that such logos shall be used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect the Company and/or its Subsidiaries or their reputation or goodwill.
(b) or Section 7.9(b) belowNotwithstanding the foregoing, (A) none of Allergan neither the Company nor any of its Subsidiaries Affiliates shall be required to take or permit the taking of any action pursuant to this Section 7.9(a6.05: (A) that would require the Company or Section 7.9(b) below any of its Affiliates or any other Persons who are directors or officers of such entities to (i) pay any commitment pass resolutions or other fee consents to approve or incur any liability (other than third-party costs and expenses authorize the execution of the Debt/Preferred Equity Financing that are not conditioned upon the effectiveness of the Closing; provided that any director or officer whose resignation becomes effective immediately after the Closing occurs shall not be required to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))pass resolutions or consents, (iiB) that would require the Company or any of its Affiliates or any other Persons who are directors or officers of such entities to execute or deliver any definitive financing documents or any other agreement, certificate, document document, instrument or instrumentagreement, or agree to any change to or modification of any existing agreement, certificate, document opinion, document, instrument or instrumentagreement, in each case case, prior to the Closing (it being understood that would no obligations of the Company under any certificate, opinion, document, instrument or agreement delivered pursuant to this Section 6.05 shall be required to be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) aboveClosing), (iiiC) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan the Company or any of its Affiliates or would cause any condition to the Closing to fail to be satisfied, (D) that would require the Company or any of its Subsidiaries to pay (unless waived by AbbViex) any commitment or other similar fee or (y) incur any other expense, liability or obligation in connection with the Debt/Preferred Equity Financing that, in the case of this clause (y), would not be subject to the Reimbursement Obligations of Parent, (iiiE) that could cause any director, officer or employee or shareholder stockholder of Allergan the Company or any of its Subsidiaries Affiliates to incur any personal liability or liability, (ivF) that could reasonably be expected to conflict with, result in a material any violation or breach of, or a default (with or without notice, lapse of time, or both) under, any material Contract of their respective organizational documents, or any Applicable Law or Material Contracts not entered into in contemplation of the obligations of the Company under this Section 6.05, (G) that provides access to which Allergan or discloses information that the Company or any of its Subsidiaries is a partyAffiliates determines could reasonably be expected to jeopardize any attorney-client privilege of, or conflict with any confidentiality obligations contained in any Material Contracts not entered into in contemplation of the obligations of the Company under this Section 6.05 binding on, the Organizational Documents Company or any of Allergan its Subsidiaries, (H) that would, in the opinion of the Company in good faith, unreasonably interfere with the ongoing operations of its or its Affiliates’ businesses or would require an action that is not within the control of the Company or its Affiliates using reasonable best efforts or (I) that would cause significant competitive harm to the Company or its Subsidiaries or any applicable Lawif the transactions contemplated by this Agreement are not consummated. AbbVie shall cause all All non-public or other confidential information provided by or on behalf of Allergan the Company or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to 6.05 shall be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the Agreement or pursuant to confidentiality undertakings that will customary for the type of Debt/Preferred Equity Financing contemplated under the Debt Commitment Letter or Preferred Equity Commitment Letter. Nothing contained in this Section 6.05 or otherwise shall require the Company or any of its Affiliates to encumber any of its assets or be obtained an issuer or other obligor with respect to the Debt/Preferred Equity Financing or require the Company or any of its Affiliates to be an issuer or other obligor with respect to the Debt/Preferred Equity Financing, in each case, prior to the Closing. Parent shall, promptly upon request by the Company, reimburse the Company and its Affiliates for all fees, costs, expenses and liabilities incurred by any of them or their respective Representatives in connection with syndication fulfilling their respective obligations pursuant to this Section 6.05 (including reasonable attorneys’ fees) but excluding the fees, costs or expenses for financial statements included in the Required Information or any other materials that, in each case, would be prepared by the Company or its Affiliates in the ordinary course of business whether or not request would be made by Parent under this Section 6.05. Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that the provisions contained in this Section 6.05 represent the sole obligations of the Financing will be Company and any of its Representatives with respect to cooperation in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance connection with the requirements arrangement of any financing (including the Financing) to be obtained by Parent or any of its Affiliates with respect to the transactions contemplated by this Agreement, and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or modify such obligations. Parent shall indemnify, defend and hold harmless the Company, its Affiliates and their respective Representatives from and against any and all losses, damages, claims, costs or expenses actually suffered or incurred by them in connection with the provision of assistance pursuant to this Section 6.05 in connection with the Financing or any other financing by Parent or any of its Affiliates (including the arrangement thereof) and any information used in connection therewith except any such losses, damages, claims costs or expenses arising out of any willful misconduct, gross negligence, or bad faith, fraud or intentional misrepresentation by any of the Panel Company or its Subsidiaries and its or their respective Representatives. The reimbursement and indemnification obligations of Parent set forth in this Section 6.05(b) are referred to, collectively, as the Takeover Rules“Reimbursement Obligations.”
Appears in 2 contracts
Sources: Merger Agreement (McAfee Corp.), Merger Agreement (McAfee Corp.)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan The Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and each of them shall use its their reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, Representatives to use their reasonable best efforts, to provide customary cooperation, to AbbVie and its Subsidiaries such assistance as may be the extent reasonably requested by AbbVie Parent in writing that is customary writing, in connection with the arrangingoffering, obtaining and syndication arrangement, syndication, consummation, issuance or sale of any Debt Financing or Alternative Financing obtained in accordance with Section 5.13 (provided, that such requested cooperation does not unreasonably interfere with the ongoing operations of the FinancingCompany or any of its Affiliates), including including, to the extent so requested, using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect furnish promptly to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with Parent the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmationsInformation, and undertakings in connection with such other financial information regarding the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan Company and its Subsidiaries as is reasonably requested by AbbVie or Parent in connection with the Debt Financing;
(ii) assist Parent in its Financing Sources and customarily required in Marketing Material for Financings preparation of the applicable type, including all Historical Financial Statements and other customary pro forma financial information identified in clause (c) of paragraph 2 of Annex B of the Debt Commitment Letters with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable typeParent;
(iii) providing provide reasonable and customary assistance to AbbVie’s legal counsel Parent and its independent auditors such the Financing Parties in the preparation of (A) customary offering documents, offering memoranda, offering circulars, private placement memoranda, registration statements, prospectuses, syndication documents and other syndication materials, including information memoranda, lender and investor presentations, bank books and other marketing documents, and similar documents for any portion of the Debt Financing and (B) materials for rating agency presentations;
(iv) make senior management of the Company available, at reasonable times and locations and upon reasonable prior notice, to participate in meetings (including one-on-one conference or virtual calls with Financing Parties and potential Financing Parties), drafting sessions, presentations, road shows, rating agency presentations and due diligence sessions and other customary syndication activities, provided, at the Company’s option in consultation with Parent, any such meeting or communication may be conducted virtually by videoconference or other media;
(v) cause the Company’s independent registered accounting firm to provide customary assistance, including by using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary comfort letters (including “negative assurance” comfort, if customary and appropriate) in connection with any capital markets transaction comprising a part of the Debt Financing to the applicable Financing Parties and to participate in a reasonable number of due diligence sessions; provided, at the Company’s option, any such session may be conducted virtually by videoconference or other media, and including by using reasonable best efforts to provide customary representation letters to the extent required by such independent registered accounting firm in connection with the foregoing;
(vi) provide customary authorization letters authorizing the distribution of Company information relating to Allergan prospective lenders in connection with a syndicated bank financing;
(vii) assist in obtaining or updating corporate and its Subsidiaries facility credit ratings;
(viii) assist in the negotiation and preparation of any credit agreement, indenture, note, purchase agreement, underwriting agreement, guarantees and customary closing certificates, as may be reasonably requested by Parent, in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors each case as experts in any Marketing Material and registration statements and related government filings filed or used contemplated in connection with the Debt Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents make introductions of Parent to the reasonable use Company’s existing lenders and facilitate relevant coordination between Parent and such lenders;
(x) cooperate with internal and external counsel of all of Allergan’s logos Parent in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); andDebt Financing;
(xxi) providing deliver, at least three (3) Business Days prior to Closing, to the extent reasonably requested in advance of the Completion Date such writing at least nine Business Days prior to Closing, all documentation and other information about Allergan regarding the Company and its Subsidiaries as that any Financing Party reasonably determines is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything Patriot Act of 2001, and, to the contrary extent required by any Financing Party, a beneficial ownership certificate (substantially similar in this Section 7.9(aform and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association) in respect of any of the Company or Section 7.9(bany of its Subsidiaries that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation (31 C.F.R. § 1010.230);
(xii) belowat Parent’s written request, cooperate with and use reasonable best efforts to provide all reasonable assistance to Parent in connection with any steps Parent may determine are necessary or desirable to take to (A) obtain consent for the Change of Control under and as defined in the Company Credit Agreement arising from consummation of the transactions contemplated by this Agreement, including facilitating and participating in communications with lenders under the Company Credit Agreement in relation to a Change of Control amendment request substantially in the form attached to the Debt Commitment Letters; provided that any such documentation prepared by the Company, its Subsidiaries and Representatives in connection with the foregoing shall be reasonably acceptable to Parent, and/or (B) prepay some or all amounts outstanding under the Company Credit Agreement, including (1) using reasonable best efforts to prepare and submit customary notices in respect of any such prepayment provided that such prepayment shall be contingent upon the occurrence of the Closing unless otherwise agreed in writing by the Company, and (2) using reasonable best efforts to obtain from the Company Credit Agreement agent a customary payoff letter in respect of the Company Credit Agreement;
(xiii) at Parent’s written request, cooperate with and use reasonable best efforts to provide all reasonable assistance to Parent in connection with any amendments to (A) the Financing Agreement, dated as of February 21, 2012, between The Kansas City Southern Railway Company and the United States of America, represented by the Secretary of Transportation acting through the Administrator of the Federal Railroad Administration and (B) the Financing Agreement, dated as of June 28, 2005, between Texas Mexican Railway Company and the United States of America, represented by the Secretary of Transportation acting through Administrator of the Federal Railroad Administration;
(xiv) on the Closing Date but immediately following the Closing, at Parent’s request (which may be prior to the Closing Date), execute such documentation as is reasonably requested so that the Company can assume the Debt Commitment Letter in respect of the Company Credit Agreement (to the extent the debt commitments thereunder have not been terminated at Closing in accordance with their terms); and
(xv) consent to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor reasonably likely to, harm or disparage the Company or its Subsidiaries or the Company’s or its Subsidiaries’ reputation or goodwill.
(b) The foregoing notwithstanding, none of Allergan the Company nor any of its Subsidiaries Affiliates shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to 5.12 that would: (i) pay require the Company or its Subsidiaries or any commitment of their respective Affiliates or other fee any persons who are officers or incur any liability (other than third-party costs and expenses that are directors of such entities to be promptly reimbursed by AbbVie upon request by Allergan pursuant pass resolutions or consents to Section 7.9(c))approve or authorize the execution of the Debt Financing or enter into, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document document, instrument or instrument, agreement or agree to any change to or modification of any existing agreement, certificate, document document, instrument or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur agreement (except (x) to for the extent required authorization letters contemplated by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered5.12(a)(vi)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan the Company or any of its Subsidiaries (unless waived by AbbVie)Affiliates, (iii) require the Company or any of its Affiliates to (x) pay any commitment or other similar fee or (y) incur any other expense, liability or obligation which expense, liability or obligation is not reimbursed or indemnified hereunder in connection with the Debt Financing prior to the Closing, or (z) have any obligation of the Company or any of its Affiliates under any agreement, certificate, document or instrument be effective until the Closing, (iv) cause any director, officer or officer, employee or shareholder stockholder of Allergan the Company or any of its Subsidiaries Affiliates to incur any personal liability liability, (v) conflict with the Organizational Documents of the Company or any of its Affiliates or any Laws, (ivvi) reasonably be expected to result in a material violation or material breach of, or a default (with or without notice, lapse of time, or both) under, any material Contract to which Allergan the Company or any of its Subsidiaries Affiliates is a partyparty (other than the Change of Control under and as defined in the Company Credit Agreement resulting from the consummation of the Mergers), (vii) provide access to or disclose information that the Company or any of its Affiliates determines would jeopardize any attorney-client privilege or other applicable privilege or protection of the Company or any of its Affiliates, (viii) require the Company to prepare any financial statements or information (other than the Financing Information) that are not available to it and prepared in the ordinary course of its financial reporting practice, or (ix) require the Company to prepare or deliver any Excluded Information. Nothing contained in this Section 5.12 or otherwise shall require the Company or any of its Affiliates, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing. Parent shall, promptly on request by the Company, reimburse the Company or any of its Affiliates for all reasonable out-of-pocket costs incurred by them or their respective representatives in connection with such cooperation and shall indemnify and hold harmless the Company and its Affiliates and their respective representatives from and against any and all losses suffered or incurred by them in connection with the arrangement of the Debt Financing, any action taken by them at the request of Parent or its representatives pursuant to this Section 5.12 and any information used in connection therewith.
(c) The parties hereto acknowledge and agree that the provisions contained in this Section 5.12 represent the sole obligation of the Company and its Subsidiaries with respect to cooperation in connection with the arrangement of any financing (including the Debt Financing) to be obtained by Parent with respect to the transactions contemplated by this Agreement, and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or modify such obligations. In no event shall the receipt or availability of any funds or financing (including the Debt Financing) by Parent any of its Affiliates or any other financing or other transactions be a condition to any of Parent’s obligations under this Agreement. Notwithstanding anything to the contrary in this Agreement, the Organizational Documents Company’s breach of Allergan or its Subsidiaries or any applicable Law. AbbVie of the covenants required to be performed by it under this Section 5.12 shall not be considered in determining the satisfaction of the condition set forth in Section 6.3(b), unless such breach is the primary cause all of Parent being unable to obtain the proceeds of the Debt Financing at the Closing.
(d) All non-public or other otherwise confidential information provided by or on behalf of Allergan regarding the Company or any of its Subsidiaries Affiliates obtained by Parent or Representatives its representatives pursuant to this Section 7.9 to 5.12 shall be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges Parent shall be permitted to disclose such information to (i) the Financing Parties subject to their confidentiality obligations under the Debt Commitment Letters and agrees that the confidentiality undertakings that will be obtained definitive documentation evidencing the Debt Financing and (ii) otherwise to the extent necessary and consistent with customary practices in connection with syndication of the Debt Financing will be in a form subject to customary for use in confidentiality arrangements reasonably satisfactory to the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesCompany.
Appears in 2 contracts
Sources: Merger Agreement (Kansas City Southern), Merger Agreement (Canadian Pacific Railway LTD/Cn)
Financing Cooperation. (a) Until the earlier of the Completion Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article 9Termination Date, Allergan Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its their respective reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, Representatives to use their respective reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be all cooperation that is reasonably requested by AbbVie Buyer in writing and that is customary in connection with Buyer obtaining third-party debt financing for the arrangingpurpose of financing any amounts required to be paid, obtaining and syndication or issuing new debt in exchange for any of Company’s outstanding 5.00% Senior Notes due 2025 (the “Senior Notes”), in connection with the consummation of the transactions contemplated hereby (collectively, the “Financing”, and the financial institutions participating in such Financing, the “Financing Parties”), including using reasonable best efforts with respect to:
(i) participating furnishing to Buyer (A) audited consolidated balance sheets and related consolidated statements of operations, comprehensive income, stockholders’ equity and cash flows for Company for each of the three most recently completed fiscal years of Company ended at least sixty (60) days prior to the Closing Date (and, if such financing is an offering of securities, the launch date of such offering) prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year, (B) unaudited condensed consolidated balance sheets and assisting related condensed consolidated statements of operations, comprehensive income and cash flows (in each case, subject to normal year-end adjustments and absence of certain footnotes, as permitted by the applicable rules of the SEC) for Company for the fiscal quarter ended September 30, 2019 and each subsequent fiscal quarter ended on a date that is at least forty (40) days before the Closing Date (and, if such financing is an offering of securities, the launch date of such offering), and (C) other historical financial information regarding Company and its Subsidiaries reasonably necessary to permit Buyer to prepare pro forma financial statements customarily included in marketing and offering documents for an offering of securities of Buyer on a registration statement filed with the due diligence, syndication or other marketing SEC;
(ii) furnishing to the Financing Parties customary authorization letters (subject to customary confidentiality provisions and disclaimers) authorizing the distribution of the Financing, including information;
(iii) using reasonable best efforts to cause Company’s or any of its Subsidiary’s independent accountants to provide customary assistance and cooperation reasonably requested by Buyer or the Financing Parties with respect to any offering of securities, including (A) providing any necessary written consents to use their audit or other reports relating to financial statements of Company and its Subsidiaries and to be named as an “Expert” in any document related to any applicable Financing that is registered under the participation Securities Act and (B) participating in customary accounting due diligence sessions and providing any customary “comfort” letters (including customary “negative assurance” comfort for any applicable Financing);
(iv) assisting Buyer in the preparation of customary offering and marketing documents (and any supplements thereto) in connection with any Financing; and
(v) (A) cooperating with any customary due diligence process as reasonably requested by members of management of Allergan with appropriate seniority Buyer, including participating in a reasonable number of meetings, presentations, road shows, drafting due diligence sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, in each case at times and at locations reasonably acceptable to Allergan Company and upon reasonable notice, and (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection cooperating with the Financing (collectivelycustomary marketing efforts of Buyer, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;.
(ivb) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) 5.22 and Section 5.23 neither Company nor any Subsidiary shall, pursuant to this Section 5.22 or Section 7.9(b5.23:
(i) belowbe required to incur any out-of-pocket fees, expenses or other liabilities prior to the Effective Time for which it has not been previously or is not promptly reimbursed or simultaneously indemnified in full or pay any fee prior to the Effective Time for which it has not been previously or is not promptly reimbursed in full;
(Aii) none be required to cause any Representative of Allergan nor Company or any of its Subsidiaries shall to take any action that could reasonably be expected to result in such Representative incurring any personal liability;
(iii) be required to take provide any information that is prohibited or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed restricted from being provided by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents applicable Law or any other agreement, certificate, document or instrument, or agree to any change to or modification of any Contract existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light as of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) date hereof or provide access to or disclose information that Allergan or any that, in the reasonable good faith determination of its Subsidiaries reasonably determines Company, would jeopardize or violate any attorney-client privilege of Allergan or any confidentiality obligation binding on Company or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), Subsidiaries;
(iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture be required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use nor shall any of their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicableRepresentatives be required, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (vA) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving to approve or authorize the execution of the agreements, documents or and instruments pursuant to which the Financing is obtained or (B) execute, deliver or enter into, or perform any Allergan Note Offers and Consent Solicitations is consummated agreement, document or instrument (other than customary authorization letters), including any credit or other agreements, guarantees, pledge or security documents or certificates in connection with the Financing that would be effective prior to the Effective Time (other than customary authorization letters);
(v) be required to (or be required to cause their Representatives to) enter into or approve any other agreement or other documentation, or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Effective Time (except as set forth in Section 5.23);
(vi) be required to (or be required to cause their Representatives to) provide any indemnity prior to the execution and delivery Effective Time for which it has not received prior reimbursement in full or is not otherwise indemnified in full by or on behalf of Buyer;
(vii) be required to (or be required to cause their Representatives to) take any applicable Allergan Supplemental Indentures)action that would reasonably be expected to conflict with, and (C) neither Allergan nor or result in a violation of, or result in a breach of or a default under, any charter or other organizational documents of Company or any of its Subsidiaries shall as in effect on the date hereof;
(viii) be required to (or be required to cause their Representatives to) take or permit the taking of any action that would reasonably be expected to conflict with, violate, or result in breach of or default under the provisions of the Credit Agreement, dated as of September 7, 2017, among Delphi Jersey Holdings plc (irenamed Delphi Technologies PLC) interfere unreasonably with (“DJH”), Delphi Powertrain Corporation (“DPC”), JPMorgan Chase Bank, N.A., as administrative agent, and the business other lenders and agents party thereto (the “Company Credit Agreement”) or operations the Senior Notes Indenture, dated as of Allergan September 28, 2017, among DJH, the guarantors named therein, U.S. Bank National Association (“USB”) as trustee (the “Trustee”), and U.S. Bank National Association as registrar, paying agent and authenticating agent, as supplemented by the Supplemental Indenture, dated December 4, 2017, by and between DJH, the guaranteeing parties and USB relating to the Senior Notes (the “Senior Notes Indenture”);
(ix) be required to (or its Subsidiariesbe required to cause their Representatives to) take any actions that would, (ii) or would reasonably be expected to, cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan Company or any of its Subsidiaries or Representatives pursuant that would, or would reasonably be expected to, cause any condition set forth in Article VI to this Section 7.9 fail to be kept confidential satisfied (in accordance each case unless Buyer waives such breach or failure prior to Company or any of its Subsidiaries taking such action);
(x) be required to (or be required to cause their Representatives to) take any actions that would unreasonably interfere with Company’s and its Subsidiaries’ business or operations taken as a whole;
(xi) be required to (or be required to cause their Representatives to) prepare or furnish pro forma financial statements, projections or financial statements (provided that Company shall use its reasonable best efforts to provide any historical financial information regarding Company and its Subsidiaries reasonably necessary to permit Buyer to prepare pro forma financial statements customarily included in marketing and offering documents for an offering of securities of Buyer on a registration statement filed with the Confidentiality Agreement; providedSEC as contemplated in Section 5.22(a)(i));
(xii) be required to be an issuer or obligor with respect to the Financing prior to the Effective Time.
(xiii) be required to (or be required to cause their Representatives to) provide opinions of internal or external counsel.
(c) Buyer shall, that Allergan acknowledges promptly upon request by Company, reimburse Company for all reasonable and agrees that the confidentiality undertakings that will be obtained documented costs and expenses (including attorneys’ fees) incurred by Company or any of its Subsidiaries in connection with syndication of the Financing will be cooperation contemplated by this Section 5.22, and shall indemnify and hold harmless Company, its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, expenses (including attorneys’ fees), interest, judgments and penalties suffered or incurred by them, in a form customary for use connection with this Section 5.22, in each case whether or not the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulestransactions contemplated hereunder are consummated or this Agreement is terminated.
Appears in 2 contracts
Sources: Transaction Agreement (Delphi Technologies PLC), Transaction Agreement (Borgwarner Inc)
Financing Cooperation. (a) Until Prior to the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9Closing Date, Allergan shall use its reasonable best effortsClorox Parent shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its commercially reasonable best efforts to cause its and their respective the officers, employees employees, representatives and advisors of Clorox Parent and other Representativeseach of its Subsidiaries to, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries Purchaser such assistance as may be cooperation reasonably requested by AbbVie Purchaser to assist Purchaser in writing that causing the conditions in the Debt Financing Letters to be satisfied and such cooperation as is customary reasonably requested by Purchaser in connection with the arrangingDebt Financing and the Debt Payoff (for the avoidance of doubt, obtaining and syndication any references to Debt Financing or Financing in this Section 5.19 shall include the issuance of senior notes (which may be secured) contemplated by the FinancingDebt Commitment Letter), including using reasonable best efforts with respect tocooperation that consists of:
(i) participating in and assisting with having the due diligence, syndication or other marketing management team of the Financing, including using reasonable best efforts with respect Business to (A) the participation by members of management of Allergan with appropriate seniority participate in a customary and reasonable number of meetings, presentations, road shows, drafting due diligence sessions, due diligence drafting sessions and sessions with prospective lenders, investors and rating agencies;
(ii) using commercially reasonable efforts to assist with the preparation of a customary rating agency presentation, at times bank information memoranda and at locations reasonably acceptable bank syndication materials (and providing reasonable and customary authorization letters to Allergan the financing sources authorizing the distribution of information to prospective lenders and upon reasonable noticecontaining customary information), (B) assisting and high-yield offering prospectuses or memoranda required in connection with AbbViethe Financing, including making available employees of the Business and members of the finance department or other employees of Clorox Parent and its Subsidiaries to assist Purchaser in Purchaser’s preparation of customary materials any required financial information (including pro forma financial information) or projections; provided, that any such bank information memoranda or high-yield offering prospectuses or memoranda shall contain disclosure and pro forma financial statements reflecting Purchaser and/or its Subsidiaries as the obligor;
(iii) with respect to the Transferred Companies, executing and delivering any pledge and security documents and intercreditor agreements, guarantees, indentures, currency or interest hedging arrangements, other definitive financing documents,
(iv) furnishing Purchaser and its Financing sources as promptly as practicable with (A) (I) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Business, for registration statementsthe three most recently completed fiscal years ended at least 90 days before the Closing Date, (II) unaudited consolidated balance sheets and related statements of income and cash flows of the Business for each fiscal quarter ended during Clorox Parent’s 2010 fiscal year, which shall have been reviewed by the Business’s independent accountants as provided in SAS 100, and (III) unaudited consolidated balance sheets and related statements of income and cash flows of the Business for each fiscal quarter ended after the close of its most recent fiscal year and at least 45 days prior to the closing date (provided that if the Closing occurs prior to Clorox Parent having furnished such financial statements to Purchaser, Clorox Parent will furnish such financial statements to Purchaser as promptly as practicable thereafter, but in any event within the later of (i) ten (10) Business Days after the Closing Date and (ii) thirty calendar days after the end of Clorox Parent’s most recently completed fiscal year), in case of (I), (II) and (III) in form and substance required by Regulation S-X and Regulation S-K promulgated under the Securities Act for a registered public offering documentsof non-convertible debt securities of the Purchaser, to the extent the same is of the type and form customarily included in an offering memorandum, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations prospectuses and similar documents required to issue and sell notes in connection with a public offering or private placement under Rule 144A promulgated under the Financing Securities Act or other private placement, (collectively, “Marketing Material”B) and due diligence sessions related theretoa reasonably detailed listing of the corporate cost allocations for the Business for each of the periods referred to in (A) above, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing an electronic version of the historical audited consolidated financial statements trademarks, service marks and unaudited consolidated interim financial statements corporate logo of Allergan included or incorporated by reference into the Allergan SEC Documents (Business for use in marketing materials for the “Historical Financial Statements”) purpose of facilitating the syndication of the Debt Financing, and (D) delivering customary the authorization lettersletters referred to in Section 5.19(a)(ii) (all such information in this clause (v), management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers“Required Information”);
(iiv) timely furnishing AbbVie except as otherwise set forth in Section 5.19(a)(iv) above, using commercially reasonable efforts to furnish Purchaser and its Financing Sources sources as promptly as practicable with historical all financial statements, pro forma financial information, financial data, audit reports and other customary information (collectively, regarding the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) Business of the type that would be required by Regulation S-X and Regulation S-K promulgated under the Securities Act if for a registered public offering of non-convertible debt securities of the Financing were incurred by AbbVie Purchaser (including for Purchaser’s preparation of pro forma financial statements), to the extent the same is of the type and registered on Form S-3 form customarily included in an offering memorandum, private placement memoranda, prospectuses and similar documents to issue and sell notes in a public offering or private placement under Rule 144A promulgated under the Securities ActAct or other private placement, or otherwise necessary to receive from the Business’s independent accountants customary “comfort” (including audit reports of annual financial statements “negative assurance” comfort) with respect to the extent so required (which audit reports shall not financial information to be subject included in such offering memorandum and which, with respect to any “going concern” qualifications)interim financial statements, or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of shall have been reviewed by the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing AllerganBusiness’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors accountants as experts provided in any Marketing Material and registration statements and related government filings filed or used in connection with the FinancingSAS 100;
(vi) obtaining Allerganusing commercially reasonable efforts to cooperate with Purchaser and Purchaser’s independent auditorsefforts to obtain customary and reasonable accountants’ customary comfort letters and assistance with no later than the accounting due diligence activities first day of the Financing SourcesMarketing Period, corporate and facilities ratings, consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys, appraisals, and title insurance (including providing reasonable access to Purchaser and its representatives to all Fee Properties and Leased Properties), to the extent reasonably required by the prospective Lenders;
(vii) causing using commercially reasonable efforts to take all actions reasonably necessary to (x) permit the Financing prospective Lenders to benefit from evaluate the existing lender relationships Business’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of Allergan preparing bank memoranda and its Subsidiariesoffering documents and establishing collateral arrangements to the extent customary and reasonable and (y) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing;
(viii) providing documents reasonably requested by AbbVie or requesting customary payoff letters, Lien terminations and instruments of discharge to be delivered at Closing to allow for the Financing Sources relating payoff, discharge and termination in full on the Closing Date of all Indebtedness to be extinguished on the Closing Date (the “Debt Payoff”); and
(ix) with respect to the repayment Transferred Companies only, entering into one or refinancing more credit or other agreements or indentures on terms satisfactory to Purchaser in connection with the Debt Financing immediately prior to the Effective Time to the extent direct borrowings or debt incurrences by a Transferred Company are contemplated by the Debt Commitment Letter; provided that notwithstanding anything to the contrary in this Agreement, (v) nothing herein shall require such cooperation to the extent it would require Clorox Parent to waive or amend any terms of this Agreement or agree to pay any indebtedness fees or reimburse any expenses for borrowed money which it has not received prior reimbursement by or on behalf of Allergan Purchaser, or incur any Liability or give any indemnities other than as set forth in this Agreement, (w) nothing herein shall require such cooperation from Clorox Parent or its Subsidiaries to the extent it would unreasonably interfere with the ongoing operations of Clorox Parent and its Subsidiaries (including without limitation, the timely filing of disclosures pursuant to applicable securities laws and the announcement of earnings), or require Clorox Parent or any of its Subsidiaries to take any action that will conflict with or violate their respective organizational documents or any Laws or result in the contravention of or could reasonably be repaid expected to result in a violation or refinanced on breach of any Contract to which Clorox Parent or any of its Subsidiaries is a party or otherwise bound, (x) neither Clorox Parent nor any of its Subsidiaries nor any of their respective Representatives shall incur any Liability relating to the Completion Date Debt Financing (other than Liabilities of the Transferred Companies after the Closing Date), (y) no obligation of Clorox Parent or its Subsidiaries or any of their respective Representatives under any certificate, agreement, arrangement, document or instrument relating to the Debt Financing shall be effective until the Closing Date, and (z) any bank information memoranda and high-yield offering prospectuses or memoranda required in relation to the Debt Financing (1) shall not be issued by Clorox Parent or any of its Subsidiaries, (2) shall contain disclosure and pro forma financial statements reflecting the Purchaser and/or its Subsidiaries as the obligor, and (3) shall expressly disclaim any representation, warranty or Liability of Clorox Parent, its Subsidiaries or their Representatives (other than the Transferred Companies post-Closing) to the recipients thereof and the release of related liens and/or guarantees ultimate Lenders.
(if anyb) effected therebyClorox Parent, including customary payoff letters its Affiliates and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtednesstheir respective officers, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter advisors and representatives shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of indemnified and held harmless by Purchaser for and against any and all of Allergan’s logos Losses suffered or incurred by them in connection with the Financing arrangement of the Debt Financing, the Debt Payoff, and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable law, except to the extent such Losses were caused by the gross negligence or willful misconduct of Clorox Parent, its Affiliates or their respective officers, advisors and representatives or by breach of this Agreement by Clorox Parent, and to the full extent such indemnification is not available Clorox Parent’s contribution shall be limited to its relative fault arising from any gross negligence or willful misconduct or breach of this Agreement by Clorox Parent, its Affiliates or their respective Representatives, and Purchaser shall reimburse Clorox for any Losses incurred in excess of such amount.
(c) Clorox Parent hereby consents to the use the trademarks, service marks and corporate logos of the Business in connection with the Financing; provided that such trademarks, service marks and corporate logos are used solely in a manner that is not intended to and is not or reasonably likely to harm or disparage Allergan Clorox Parent or any of its Subsidiaries or the reputation or goodwill of Allergan Clorox Parent or any of its Subsidiaries); and.
(xd) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all All non-public or other confidential information provided by or on behalf of Allergan Clorox Parent or any of its Subsidiaries officers, employees, representatives or Representatives advisors pursuant to this Section 7.9 to Agreement shall be kept confidential in accordance with a customary manner for syndicated financings; provided that, notwithstanding anything to the contrary in this Agreement or the Confidentiality Agreement; provided, that Allergan acknowledges Purchaser shall be permitted to disclose such information to potential sources of capital, rating agencies, prospective lenders and agrees that the confidentiality undertakings that will be obtained investors and their respective officers, employees, representatives and advisors in connection with syndication of the Financing will so long as such Persons agree to be in bound by the Confidentiality Agreement or other customary confidentiality undertaking reasonably satisfactory to Clorox Parent and of which Clorox Parent shall be a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesbeneficiary.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Armored AutoGroup Inc.), Purchase and Sale Agreement (Clorox Co /De/)
Financing Cooperation. (a) Until The Company shall deliver to Parent the Required Financial Information as soon as reasonably practicable and, in any case, no later than the date on which the Required Financial Information would be required to satisfy the conditions precedent set forth in the Debt Letters. The Company shall maintain its existing corporate and facility ratings (but not any specific rating). From the date hereof until the Closing (or the earlier of the Completion and the valid termination of this Agreement pursuant to Section 8.01), subject to the limitations set forth in this Section 5.05, and in accordance with Article 9unless otherwise agreed by Parent, Allergan shall the Company will use its reasonable best efforts, and shall will cause each of its Subsidiaries to use its reasonable best efforts, and shall will use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, its Subsidiaries’ Representatives to use their reasonable best efforts, to provide customary cooperation to AbbVie Parent, as reasonably requested by Parent as may be necessary or desirable for Parent’s arrangement of the Debt Financing. Such cooperation will include using reasonable best efforts, upon Parent’s reasonable request, to:
(i) cooperate with the marketing efforts of Parent solely in connection with the Debt Financing, including making appropriate senior officers of the Company available to participate in a reasonable number of lender or investor meetings, due diligence sessions, meetings with ratings agencies and its Subsidiaries road shows, in each case, at reasonable times and locations mutually agreed and upon reasonable prior notice (it being understood that any such meetings may take place via videoconference or web conference at the Company’s option);
(ii) provide reasonable and customary assistance to Parent in Parent’s preparation of customary confidential information memoranda, private placement memoranda, offering memoranda, prospectuses, lender and investor presentations and similar documents customarily required in connection with financings of a type similar to the Debt Financing and as may be reasonably requested by AbbVie Parent, in writing that is customary each case, with respect to historical information relating to the Company and its Subsidiaries in connection with such marketing efforts for the arrangingDebt Financing;
(iii) to the extent contemplated by or required under the Debt Commitment Letter, obtaining and syndication provide customary authorization letters to the Debt Financing Entities to accompany customary marketing materials in respect of the Debt Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts making a customary 10b-5 representation with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material contained therein (in each case, as applicable, subject to including customary confidentiality exculpatory provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and the Company, each of its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings each of the applicable type, including all Historical Financial Statements their respective Affiliates and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualificationsRepresentatives), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation cooperate with the Debt Financing Entities’ due diligence efforts, to the extent reasonable and customary for financings similar to the Debt Financing;
(v) assist Parent in obtaining any customary corporate or facility ratings (but not any specific rating) from any rating agencies contemplated by the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Debt Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters assist the Debt Financing Parties in benefiting from the existing lending and assistance with the accounting due diligence activities investment banking relationships of the Financing Sources;Company and the Company Subsidiaries; and
(vii) causing the Financing to benefit from the existing lender relationships of Allergan furnish all documentation and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos other information required in connection with the Debt Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation, the USA PATRIOT ACTAct, Title III of Pub. L. 107-56 (signed into law October 26, 2001) and the requirements of 31 C.F.R. §1010.230, at least four (4) Business Days prior to the anticipated Closing Date, in each case, to the extent reasonably requested by Parent at least nine (9) Business Days prior to the anticipated Closing Date.
(b) Notwithstanding anything to the contrary contained in this Section 7.9(a) or Section 7.9(b) below5.05, nothing in this Agreement (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to including this Section 7.9(a5.05) or Section 7.9(b) below shall require any such cooperation to the extent that it would reasonably be expected to (i) other than in connection with any Consent Solicitation require the Company or any of its Affiliates or any of their respective Subsidiaries or Representatives to pay any commitment or other fee fees, make any other payment, reimburse any expenses or otherwise incur any liability (other than third-party costs and expenses that are or obligation in connection with the Debt Financing, agree to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute give any indemnities or deliver otherwise incur any definitive financing documents or obligation under any other agreement, certificate, document or instrument, agreement or agree to any change to or modification of any existing agreement, certificate, document or instrumentother documentation, in each case case, that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental IndenturesClosing, (yii) customary officers’ certificates relating to unreasonably interfere with the execution thereof that would not conflict with applicable Law and would be accurate in light ongoing business or operations of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above)Company or any of its Affiliates or any of their respective Subsidiaries or Representatives, (iii) provide access to or disclose information that Allergan other than in connection with a Consent Solicitation, require the Company or any of its Affiliates or any of their respective Subsidiaries reasonably determines would jeopardize or Representatives to enter into, execute, deliver or approve any certificate (including any certificate as to solvency), instrument, agreement or other documentation (other than customary authorization letters in connection with the marketing efforts for the Debt Financing; provided that any such information distributed in connection with the foregoing shall contain customary language which shall exculpate the Company, its Affiliates and their respective Subsidiaries and Representatives with respect to any liability related to the unauthorized use or misuse of the contents of such information or related marketing materials by the recipients thereof) or agree to any change or modification of any existing certificate, instrument, agreement or other documentation, (iv) conflict with or result in any violation of the Company Articles, the Company Bylaws or the Organizational Documents of any of its Subsidiaries or any of their respective Affiliates, (v) result in a violation or breach of, or a default (with or without notice, lapse of time or both) under, any Contract to which the Company, any of its Subsidiaries or any of their respective Affiliates is a party, including this Agreement and any applicable confidentiality obligation, in each case, entered into with a Person that is not an Affiliate of the Company, (vi) result in a violation of applicable Law (including with respect to privacy of employees), (vii) threaten any attorney-client privilege or other applicable legal privilege of Allergan the Company or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use Affiliates or any of their respective reasonable best efforts to Subsidiaries or Representatives, in each case, as reasonably determined by the Company or any of its Affiliates or any of their respective Subsidiaries or Representatives, (viii) cause any such information Representative of the Company or any of its Affiliates to be disclosed in a manner that would not result in the loss of incur any such privilege)personal liability, (ivix) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, other than in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b)a Consent Solicitation, Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan the Company or any of its Subsidiaries (unless waived by AbbVie)Affiliates, (iiix) cause any director, officer or employee or shareholder of Allergan require the Company or any of its Affiliates or any of their respective Subsidiaries or Representatives to incur prepare or deliver any personal liability pro forma financial information, projections or other forward-looking financial information, (ivxi) result in a material violation or breach of, or a default under, any material Contract to which Allergan require the Company or any of its Subsidiaries is a party, the Organizational Documents Affiliates or any of Allergan or its their respective Subsidiaries or Representatives to deliver any applicable Lawlegal opinion or reliance letter or (xii) require the Company or any of its Affiliates or any of their respective Subsidiaries or Representatives to deliver (1) other than to the extent contemplated by the Required Financial Information, any audited financial information or any financial information prepared in accordance with Regulation S-K or Regulation S-X under the Securities Act of 1933, as amended, or any financial information in a form not customarily prepared by the Company with respect to such period or (2) any financial information with respect to a month or fiscal period that has not yet ended or has ended less than forty-five (45) days prior to the date of such request. AbbVie shall cause all non-public The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided, however, that such logos are used solely in a manner that is not intended, or other confidential information provided by reasonably likely, to harm or on behalf of Allergan disparage the Company or any of its Subsidiaries or any of their respective Affiliates or Representatives or the reputation or goodwill of any of the foregoing.
(c) Parent shall (i) promptly upon request by the Company, reimburse the Company for all of its reasonable and documented out-of-pocket fees and expenses (including reasonable and documented out-of-pocket fees and expenses of counsel and accountants) incurred by the Company or any of its Affiliates or any of their respective Subsidiaries or Representatives in connection with the Debt Financing, including any cooperation related thereto and (ii) indemnify and hold harmless the Company and its Affiliates and any of their respective Subsidiaries or Representatives against any claim, loss, damage, injury, liability, judgment, award, penalty, fine, cost (including cost of investigation), expense (including fees and expenses of counsel and accountants) or settlement payment incurred as a result of, or in connection with, such cooperation or the Debt Financing and any information used or misused in connection therewith other than those claims, losses, damages, injuries, liabilities, judgments, awards, penalties, fines, costs, expenses and settlement payment arising out of or resulting from the fraud, gross negligence or willful misconduct of the Company, its Subsidiaries or their respective Affiliates and Representatives as finally determined by a court of competent jurisdiction.
(d) The parties hereto acknowledge and agree that the provisions contained in this Section 5.05 represent the sole obligation of the Company and its Affiliates and any of their respective Subsidiaries or Representatives with respect to any financing (including the Debt Financing) to be obtained by Parent with respect to the transactions contemplated by this Agreement (including the Debt Letters).
(e) All nonpublic or otherwise confidential information regarding the Company, any of its Subsidiaries or any of their respective Affiliates obtained by Parent or any of its Representatives or any of their respective Affiliates pursuant to this Section 7.9 5.05 shall be deemed subject to be kept confidential in accordance with the Confidentiality Agreement; provided.
(f) Notwithstanding anything in this Agreement to the contrary, that Allergan acknowledges in no event shall the receipt by, or availability to, Parent or any of its Affiliates of any funds or financing or any other financing transaction (including the Debt Financing) be a condition to Parent’s or Merger Subs’ obligations to effect the Closing.
(g) The Company and agrees that its Subsidiaries shall deliver payoff or similar notices with respect to any Indebtedness requested by Parent at least ten (10) Business Days prior to the confidentiality undertakings that will be obtained in connection anticipated Closing Date to the applicable agents, trustees or financing sources thereunder within the time frames required by the terms of such Indebtedness. The Company and its Subsidiaries shall deliver to Parent at least two (2) Business Days prior to the Closing Date a copy of payoff letters with syndication respect to such Indebtedness (and shall deliver at least five (5) Business Days prior to the Closing Date drafts of such payoff letters), setting forth the total amounts payable thereunder to fully satisfy all principal, interest, fees, costs, and expenses owed to each holder of such Indebtedness as of the Financing will anticipated Closing Date (and the daily accrual thereafter), together with appropriate wire instructions, and the agreement from the administrative agent, trustee or other debtholder that upon payment in full of all such amounts owed to such holder, all Indebtedness with respect thereto shall be discharged and satisfied in a form customary for use full and, if applicable, all liens on the Company or its applicable Subsidiaries and their respective assets and equity shall be released and terminated, together with any applicable documents reasonably necessary to evidence the release and termination of all liens on the Company or its applicable Subsidiaries and their respective assets and equity securing such Indebtedness. The Company shall reasonably cooperate with Parent in replacing, backstopping or cash collateralizing any letters of credit issued pursuant to any such Indebtedness.
(h) Promptly upon the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements request of the Panel Parent, the Company shall actively assist Parent in obtaining waivers of any “change of control” (or similar term), any default or event of default or any mandatory prepayment or prepayment right or offer for prepayment right arising under the Indebtedness listed on Section 5.05(h) of the Company Disclosure Letter (the “Specified Debt Agreements”) as a result of any of the transactions contemplated by this Agreement and in obtaining other amendments to the Takeover RulesSpecified Debt Agreements reasonably requested by the Parent, which such assistance shall include, without limitation, coordinating with (and introducing the Parent and its Representatives to) the agents, lenders, noteholders and letter of credit issuers under the Specified Debt Agreements, executing and entering into such waivers and amendments and complying with customary closing deliverables required for the effectiveness thereof (the actions described herein, the “Consent Solicitations”).
Appears in 2 contracts
Sources: Merger Agreement (Allete Inc), Merger Agreement (Allete Inc)
Financing Cooperation. (a) Until Prior to the earlier of Closing, the Completion Company shall provide to Parent and the valid termination of this Agreement pursuant to Merger Sub and in accordance with Article 9, Allergan shall use its reasonable best effortstheir financing sources, and shall cause each of its the Company Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its and their the respective officers, employees and advisors and other Representativesadvisors, including legal and accounting advisorsaccounting, to use their reasonable best effortsof the Company and the Company Subsidiaries to, to provide to AbbVie Parent and its Subsidiaries such assistance as may be Merger Sub and their financing sources all cooperation reasonably requested by AbbVie in writing that is customary Parent in connection with the arranging, obtaining and syndication arrangement of the Financing, including using reasonable best efforts with respect toincluding:
(i) participating in a reasonable number of sessions with ratings agencies; and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) obtain ratings as and when set forth in the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Debt Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers)Commitment;
(ii) timely hosting one or more meetings with prospective financing sources as and when set forth in the Debt Financing Commitment;
(iii) providing reasonable assistance with the preparation of marketing materials and materials for rating agency presentations;
(iv) executing and delivering any definitive financing certificates, documents and/or instruments as may be reasonably requested by Parent, including pledge and security documents, currency or interest hedging agreements, and a certificate of an officer of the Company or any borrowing Company Subsidiary with respect to solvency matters and consents of accountants for use of their reports in any materials relating to the Debt Financing,
(v) furnishing AbbVie Parent and its Financing Sources financing sources as promptly as practicable with historical financial and other customary pertinent information (collectively, regarding the “Financing Information”) with respect to Allergan Company and its the Company Subsidiaries as is may be reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings Parent, including the audited consolidated financial statements of the applicable typeCompany and the Company Subsidiaries for the fiscal year ended December 31, including 2010 (the “2010 Audited Financials”), and all Historical Financial Statements other financial statements and projections and other customary pertinent information with respect to Allergan required by the Financing Commitments and its Subsidiaries (A) all financial statements, pro forma financial information, financial data, audit reports and other information of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered of type and form customarily included in a registration statement on Form S-3 S-1 (or any applicable successor form) under the Securities Act (subject to exceptions customary for private placements pursuant to Rule 144A promulgated under the Securities Act, including audit reports ) for a public offering to consummate the offering(s) of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications)debt securities, or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used otherwise required by Law in connection with the FinancingDebt Financing and the transactions contemplated by this Agreement (all such information in this clause (v), the “Required Financial Information”);
(vi) obtaining Allergan’s independent auditorsusing reasonable best efforts to obtain accountants’ customary comfort letters letters, consents, legal opinions, surveys and assistance with the accounting due diligence activities of the Financing Sourcestitle insurance as reasonably requested by Parent;
(vii) causing providing quarterly financial statements no later than the Financing date by which the applicable quarterly filing is required to benefit from be made with the existing lender relationships of Allergan and its SubsidiariesSEC;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating customary letters to the repayment or refinancing financing sources of any indebtedness for borrowed money Parent and Merger Sub authorizing the dissemination of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected therebymarketing materials, including customary payoff letters and (to the extent required) evidence confirming that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);materials do not contain material non-public information; and
(ix) procuring consents entering into one or more credit or other agreements on terms satisfactory to the reasonable use of all of Allergan’s logos Parent in connection with the Debt Financing (immediately prior to the Effective Time to the extent direct borrowings or debt incurrences by the Company or any Company Subsidiary are contemplated by the Debt Financing Commitment; provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or (1) irrespective of the reputation or goodwill above, no obligation of Allergan the Company or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance the Company Subsidiaries under any certificate, document or instrument shall be effective until the Effective Time and none of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance Company or any of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Company Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay under any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, instrument that is not contingent upon the Closing (including the entry into any agreement that is effective before the Effective Time) or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental IndenturesEffective Time, (y2) customary officers’ certificates relating to such efforts do not unreasonably interfere with the execution thereof that would not conflict with applicable Law and would be accurate in light ongoing operations of the facts Company and circumstances at the time delivered Company Subsidiaries and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B3) none of the Allergan Board, officers of Allergan, Company or directors and officers any of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Company Subsidiaries shall be required to take issue or permit disseminate any offering or information document. Parent shall, promptly upon request by the taking of any action that would (i) interfere unreasonably Company, reimburse the Company for all out-of-pocket costs incurred by the Company or the Company Subsidiaries in connection with the business performance of the provisions of this Section 7.11(a).
(b) Parent acknowledges and agrees that the Company and its Representatives shall not have any responsibility for, or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach ofto, or a default any Person under, any material Contract to which Allergan Financing that Parent or Merger Sub may raise in connection with the transactions contemplated by this Agreement or any cooperation provided pursuant to this Section 7.11 and that Parent and Merger Sub shall, jointly and severally, indemnify and hold harmless the Company and its Representatives from and against any and all Losses suffered or incurred by any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or them in connection with any applicable Law. AbbVie shall cause all Financing and any information utilized in connection therewith.
(c) All non-public or other otherwise confidential information provided by or on behalf of Allergan regarding the Company or any of its the Company Subsidiaries obtained by Parent or Merger Sub or their respective Representatives pursuant to this Section 7.9 to 7.11(a) shall be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules.
Appears in 2 contracts
Sources: Merger Agreement (Pre Paid Legal Services Inc), Merger Agreement (Pre Paid Legal Services Inc)
Financing Cooperation. (a) Until Prior to the earlier of Acceptance Time, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its Subsidiaries to use its reasonable best effortssubsidiaries to, and shall use its reasonable best efforts to cause its and their the respective officers, employees employees, consultants and advisors and other Representativesadvisors, including legal and accounting advisors, to use their reasonable best effortsof the Company and its subsidiaries to, to provide to AbbVie and its Subsidiaries Parent such assistance cooperation as may be reasonably requested by AbbVie in writing that is customary Parent in connection with obtaining the arranging, obtaining and syndication of the Debt Financing, including using reasonable best efforts with respect to:
including, (i) participating in making senior management and assisting with the due diligence, syndication or other marketing advisors of the Financing, including using reasonable best efforts with respect Company and its subsidiaries available to (A) the participation by members of management of Allergan with appropriate seniority participate in a reasonable number of meetings, presentations, road shows, drafting sessions, shows and due diligence sessions with proposed lenders, underwriters, initial purchasers or placement agents, and in sessions with prospective lenders, investors and rating agencies; provided that, any rating agency presentations, bank information memoranda or similar documents required in connection with the Debt Financing shall contain disclosure reflecting the Company and/or its Subsidiaries or Affiliates as the obligor only at times and at locations reasonably acceptable to Allergan and upon reasonable noticeafter the Effective Time, (Bii) assisting Parent with AbbVieParent’s preparation of customary pro forma financial information and pro forma financial statements and other materials for registration statementsrating agency presentations, offering documents, private placement memoranda, registration statements, bank information memoranda, prospectuses, rating agency presentations business projections and similar documents required used in connection with the Debt Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering providing customary estimates and consenting other forward-looking financial information regarding the further performance of the business of the Company and its subsidiaries to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is extent reasonably requested by AbbVie or the Debt Financing sources, and providing customary authorization and representation letters in connection therewith, (iii) using reasonable best efforts to cause its Financing Sources independent accountants to provide assistance and customarily required in Marketing Material for Financings of the applicable typecooperation to Parent, including all Historical Financial Statements participating in drafting sessions and other customary information with respect to Allergan and its Subsidiaries (A) accounting due diligence sessions, assisting in the preparation of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of to be included in the applicable type;
documents referred to in clause (iiiii) above, providing consent to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors Parent to use their audit reports on relating to the audited Historical Financial Statements Company and providing any necessary “comfort letters”, (iv) executing and delivering definitive financing documents, including pledge and security documents, and certificates, management representation letters and other documents, to the extent reasonably requested by Parent, and otherwise reasonably facilitating the pledging of Allergan collateral, (v) requesting and cooperating in obtaining customary lien terminations and instruments of discharge, relating to references any indebtedness of the Company (it being understood and agreed that the Company’s obligations to such independent auditors provide payoff letters in respect of the Credit Agreement described in Section 6.10(c) below are as experts set forth in any Marketing Material Section 6.10(c) below) and registration statements its subsidiaries, and related government filings filed or used executing and delivering an officer certificate, required to be delivered to the Trustee under the Notes Indenture in connection with the Financing;
Merger, provided that any such certificates and documentation do not contain any statements or representations that are not factually accurate in the Company’s sole judgment and that any such certificates and documentation comply in all respects with, and do not cause the Company to breach or violate, applicable Law or the Notes Indenture ; and provided further that, to the extent any statements contained in any such officer certificate are based in part upon facts relating to Parent, including the amount of Parent’s cash on hand, the pro forma amount of debt of Parent or the Company following the Merger or the Parent Merger, pro forma compliance with any ratio or the absence of any default of event of default under agreements governing any indebtedness of Parent, or require Parent to consummate any further action or refrain from taking any further action in order for any such statements to be accurate, including consummating the Parent Merger, Parent shall deliver to the Company such officer certificates as are reasonably deemed necessary by the Company to enable it to delivery any such officer certificate to the Trustee; (vi) obtaining Allergan’s independent auditors’ customary comfort letters providing reasonable access by Parent and assistance any Debt Financing sources, and their respective officers, employees, consultants and advisors (including legal, valuation, and accounting advisors) to the books and records, properties, officers, directors, agents and representatives of the Company and its subsidiaries, (vii) assisting with the accounting due diligence activities of relating to the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
Company’s financial information, (viii) providing documents furnishing to Parent and its Debt Financing sources all pertinent and customary financial and other information regarding the Company and its subsidiaries reasonably requested by AbbVie or Parent as promptly as practicable following such request to consummate the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected therebyDebt Financing, including customary payoff letters all historical financial statements and (to historical financial data regarding the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtednessCompany and its subsidiaries, in each case (A) that is required by the Securities Act (including Regulations S-K and S-X thereunder and other accounting rules and regulations of the SEC) for inclusion in accordance a registration statement to be filed with the terms SEC with respect to debt securities of Parent (other than Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X, Rule 4.02(b) of Regulation S-K and other customary exceptions), (B) that is otherwise customarily included in private placement memoranda relating to private placements under Rule 144A of the definitive documents governing Securities Act and bank information memoranda, in each case of the type contemplated by the Debt Financing, and (C) as is otherwise necessary in order to assist in receiving customary “comfort” (including as to “negative assurance” comfort and change period) from the Company’s independent accountants in connection with offerings of debt securities, in each case at the time during the Company’s fiscal year such indebtedness offerings will be made (provided that any all such notice or payoff letter shall be expressly conditioned on information described in clauses (A) through (C) this clause (viii), the Completion“Required Financial Information”);
, (ix) procuring taking all actions reasonably requested to (A) permit the prospective lenders involved in the Debt Financing to evaluate the Company’s and its subsidiaries’ assets, cash management and accounting systems, policies and procedures relating thereto, including inventory appraisals and field audits, for the purpose of establishing collateral arrangements and (B) establish bank and other accounts and blocked account contracts and lock box arrangements in connection with the foregoing after the Acceptance Time, (x) providing at least 4 Business Days prior to the Acceptance Time all documentation and other information about the Company and its subsidiaries required by applicable “know your customer” and anti-money laundering rules and regulations including the USA Patriot Act to the extent requested at least 8 calendar days prior to the anticipated Acceptance Time, and (xi) subject to the occurrence of the Acceptance Time, taking all corporate actions necessary to permit consummation of the Debt Financing; provided, that nothing herein shall require (1) such cooperation to the extent it would interfere materially and unreasonably with the business or operations of the Company or its subsidiaries, (2) delivery of (A) any other financial information in a form not customarily prepared by the Company or (B) any financial information with respect to a fiscal period that has not yet ended, or (C) any financial statement with respect to any fiscal quarter (other than the fourth quarter) prior to the date that is 40 days after the end of the applicable fiscal quarter, or (D) any financial statement with respect to a fiscal year prior to the date that is 60 days after the end of the applicable fiscal year, or (E) any unaudited financial statement in respect of any period ended December 31, 2013, unless, except in the case of clauses (A) and (E), such information is earlier reasonably available to Company and reasonably requested by Parent, (3) delivery of any certificate as to solvency or any legal opinions, or (4) the taking of any action that would conflict with or violate (x) the Company’s Restated Certificate of Incorporation or By-laws, in each case that are not contingent upon the earlier of the Acceptance Time and the Effective Time or (y) any applicable Laws. The Company hereby consents to the reasonable use of all of Allergan’s its and its subsidiaries’ logos in connection with the Financing (Debt Financing; provided that such logos are used solely in a manner that is not intended to and is not or reasonably likely to harm or disparage Allergan the Company or any of its Subsidiaries or the reputation or goodwill of Allergan the Company or any of its Subsidiaries); andSubsidiaries or any of their logos and on such other customary terms and conditions as the Company shall reasonably impose. If the Company at any time in good faith reasonably believes that it has delivered the Required Financial Information to Parent, it may deliver to Parent a written notice to such effect, in which case the Company shall be deemed to have delivered the Required Financial Information at the time of delivery of such notice, unless Parent shall provide to the Company within four Business Days after the delivery of such notice a written notice that describes with reasonable specificity the information that constitutes Required Financial Information that Parent in good faith reasonably believes the Company has not delivered.
(xb) providing at least three Notwithstanding anything in this Section 6.10 to the contrary, neither the Company nor any of its subsidiaries shall be required to (3i) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as bear any out-of-pocket cost or expense that is reasonably requested in writing by AbbVie at least ten (10not reimbursed pursuant to this Section 6.10(b) Business Days in advance of the Completion Date or pay any fee in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) belowDebt Financing, (Aii) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are or cause their respective directors, officers or employees to be promptly reimbursed by AbbVie upon request by Allergan pursuant incur any liability) under the Debt Financing prior to Section 7.9(c)), the Effective Time or (iiiii) execute enter into any agreement or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case commitment that would be effective prior to the Completion Date or would be effective if the Completion does not occur Effective Time (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and other than such management representation letters delivered pursuant and authorization letters with respect to information memoranda, authorizing the distribution of information to prospective lenders and containing customary representations that such information does not contain a material misstatement or omission, and that the public-side versions of such documents, if any, do not include material non-public information with respect to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Company or any of its Subsidiaries reasonably determines would jeopardize subsidiaries or their securities for purposes of United States federal securities laws, and other than consents of accountants for use of their reports in any attorneymaterials relating to the matters described above). Furthermore, Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-client privilege of Allergan of-pocket costs and expenses incurred by the Company, its subsidiaries and its and their respective representatives in connection with their respective obligations pursuant to this Section 6.10. Parent shall indemnify and hold harmless the Company, its subsidiaries and its and their respective representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, them in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, Debt Financing and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan any information utilized in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence than any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided in writing specifically for use by or on behalf of Allergan the Company or any of its Subsidiaries or Representatives pursuant subsidiaries), in each case other than to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication extent any of the Financing will be in foregoing arises from the bad faith, gross negligence or willful misconduct of, or breach of this Agreement by, the Company or any of its subsidiaries or their respective affiliates, officers, directors, employees, accountants, agents or representatives.
(c) The Company shall deliver to Acquisition Sub on or prior to the Acceptance Time, a form payoff letter with respect to the Credit Agreement, dated as of June 27, 2011, by and among the Company, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent (as amended, supplemented, or otherwise modified from time to time), which payoff letter shall substantially provide (subject to customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules.exceptions)
Appears in 2 contracts
Sources: Merger Agreement (Harland Clarke Holdings Corp), Merger Agreement (Valassis Communications Inc)
Financing Cooperation. (a) Until On and prior to the earlier of Closing, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its commercially reasonable best efforts to cause its and their respective directors, officers, employees employees, agents and advisors and other Representativesto, including legal and accounting advisors, use commercially reasonable efforts to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance cooperate with Parent as may be reasonably requested by AbbVie in writing that is customary necessary in connection with the arranging, obtaining arrangement of Debt Financing as may be customary and syndication of the Financingreasonably requested by Parent in writing, including using commercially reasonable best efforts with respect to, upon such request of Parent:
(i) participating in and assisting with the due diligence, syndication make appropriate officers or other marketing members of the Financing, including using reasonable best efforts with respect to management team (A) the participation by members of management of Allergan with appropriate seniority and expertise) available for participation at reasonable times in a reasonable number of meetings, lender presentations, road showsconference calls, drafting sessions, due diligence sessions and sessions meetings with prospective lenders, investors lenders and rating ratings agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie (A) furnish to Parent the Required Information, (B) provide reasonable assistance in the preparation of any reasonable and its Financing Sources with historical financial and other customary bank information memoranda (collectively, the “Financing Information”) including using commercially reasonable efforts to obtain customary authorization letters with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements specific to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan Company or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of reasonably included in any such repayment has been timely delivered to bank information memoranda from a senior officer of the holders of such indebtednessCompany) or private placement memoranda, rating agency presentations, marketing and/or syndication materials and cooperate reasonably with the Debt Financing Sources’ due diligence, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents respect to the reasonable use Company and its Subsidiaries and to the extent customary and reasonable, and (C) assist Parent in the preparation by Parent of all of Allergan’s logos customary pro forma financial statements and projections necessary in connection with the Debt Financing, it being understood that Parent shall be solely responsible for any pro forma cost savings, synergies, capitalization, ownership or other post-Closing pro forma adjustments;
(iii) assist in the preparation and negotiation and execution and delivery as of the Closing of any definitive financing documents (including any schedules and exhibits thereto) as may be reasonably requested by Parent including, without limitation, customary certificates;
(iv) facilitate the pledging of, and granting of security interests in, the collateral in connection with the Debt Financing, including using commercially reasonable efforts to execute and deliver as of Closing any customary pledge and security documents or other definitive financing documents, in each case as may be reasonably requested by Parent;
(v) cause the taking of corporate and other actions by the Company and its Subsidiaries reasonably necessary to permit the consummation of the Debt Financing on the Closing Date;
(vi) provide at least three Business Days prior to the Closing Date (provided that Parent has made such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing request at least three (3nine days prior to the Closing Date) Business Days in advance of the Completion Date such all material documentation and other information about Allergan and its Subsidiaries the Company as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates Parent to satisfy applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to Act;
(vii) request from the contrary Company’s existing lenders such customary documents in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict connection with applicable Law and would be accurate in light refinancings of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries Company’s existing debt as reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, requested by Parent in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b)Debt Financing and collateral arrangements, Allergan shall, including customary payoff letters and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee related lien releases; and
(viii) comply with any obligations under the applicable Convertible Debenture Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light arise as a result of the facts execution, delivery or performance by the Company of this Agreement and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none consummation of the Allergan Boardtransactions contemplated hereby, officers of Allergan, or directors and officers of including the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), notices and (C) neither Allergan nor any of its Subsidiaries shall be certificates required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulestransactions contemplated hereby.
Appears in 2 contracts
Sources: Merger Agreement (Synnex Corp), Merger Agreement (Synnex Corp)
Financing Cooperation. (a) Until From the date hereof until the Closing (or the earlier of the Completion and the valid termination of this Agreement pursuant to and Section 8.01), subject to the limitations set forth in accordance with Article 9, Allergan shall use its reasonable best effortsthis Section 5.05, and shall cause each of its Subsidiaries to use its reasonable best effortsunless otherwise agreed by Parent, and shall the Company will use its reasonable best efforts to cause cooperate with Parent and its and their respective officersAffiliates as reasonably requested by Parent in connection with Parent’s arrangement of the Financing (which, employees and advisors and other Representativessolely for purposes of this Section 5.05, including legal and accounting advisors, to use their shall include any alternative equity or debt capital markets financings contemplated by the Debt Letters). Such cooperation will include using reasonable best effortsefforts to:
(i) make appropriate officers reasonably available, to provide to AbbVie with appropriate advance notice, for participation in bank meetings, due diligence sessions, meetings with ratings agencies and its Subsidiaries such road shows, reasonable assistance in the preparation of confidential information memoranda, private placement memoranda, prospectuses, presentations and similar documents as may be reasonably requested by AbbVie in writing that is customary in connection with the arrangingParent or any Financing Party, obtaining and syndication of the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject with respect to information relating to the Company and its Subsidiaries in connection with customary confidentiality provisions marketing efforts of Parent and disclaimers)its Affiliates for all or any portion of the Financing;
(ii) timely furnishing AbbVie furnish Parent and its the Financing Sources Parties with historical copies of such financial and other customary information (collectively, the “Financing Information”) data with respect to Allergan the Company and its Subsidiaries which is prepared by the Company in the ordinary course of business or can be prepared by the Company without undue burden (with any cost thereof to be promptly reimbursed by Parent) as is reasonably requested by AbbVie Parent or its any Financing Sources Party and is customarily required in Marketing Material for Financings the arrangement and syndication of financings similar to the applicable typeFinancing committed pursuant to the Debt Letters, including all Historical Financial Statements and other customary such information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie allow Parent to prepare pro forma financial statements customary in accordance with Article 11 of Regulation S-X under the Securities Act of 1933, as amended, and identify any such financial information as suitable for Financings of the applicable typedistribution to “public side” lenders;
(iii) providing request that the Company’s independent accountants participate in drafting sessions and accounting due diligence sessions and cooperate with the Financing (including as set forth in the Debt Letters as in effect on the date of this Agreement) or in connection with a customary offering of securities, including the type described in the Commitment Letter, consistent with their customary practice, including requesting that they provide customary consents and comfort letters (including “negative assurance” comfort), including in respect of historical financial statements of the Company, to AbbVie’s the extent required in connection with the marketing and syndication of Financing (including as set forth in the Debt Letters as in effect on the date of this Agreement) or as are customarily required in an underwritten offering of securities of the type described in the Debt Letters, or as may otherwise be required pursuant to applicable Law or the rules or regulations of any national securities exchange in connection with the Merger or any alternative financing therefor, and provide customary management letters in connection with the foregoing;
(iv) furnish to legal counsel of Parent and its independent auditors to legal counsel of any Financing Party such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested by such counsel in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating legal opinion that such counsel may be required to the deliver in connection with such Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;; and
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan furnish Parent and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
Parties, within five (vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (35) Business Days in advance of the Completion Date following written request, such documentation and other information about Allergan and its Subsidiaries as any Financing Party may reasonably determine is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationlimitation the PATRIOT Act. provided, further, that nothing in this Agreement shall require the USA PATRIOT ACT. Company to cause the delivery of (1) legal opinions or reliance letters or any certificate as to solvency or any other certificate necessary for the Financing, other than as provided by Section 5.05(a)(iii), (2) any financial information for any period, including any audited financial information or any financial information prepared in accordance with Regulation S-K or Regulation S-X under the Securities Act of 1933, as amended, in any case in a form not customarily prepared by the Company with respect to such period, other than as provided by Section 5.05(a)(ii) or (3) any financial information with respect to a month or fiscal period that has not yet ended or has ended less than 40 days (or, in the case of a fiscal year, 60 days) prior to the date of such request.
(b) Notwithstanding anything to the contrary contained in this Section 7.9(a) or Section 7.9(b) below, Agreement (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to including this Section 7.9(a) or Section 7.9(b) below to 5.05): (i) nothing in this Agreement (including this Section 5.05) shall require any such cooperation to the extent that it would (1) require the Company to pay any commitment or other fee fees, reimburse any expenses or otherwise incur any liability (other than third-party costs and expenses that are liabilities or give any indemnities prior to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))the Closing, (ii2) execute unreasonably interfere with the ongoing business or deliver any definitive financing documents operations of the Company or the Company Subsidiaries, (3) require the Company or any of the Company Subsidiaries to enter into or approve any agreement or other agreement, certificate, document or instrument, documentation effective prior to the Closing or agree to any change to or modification of any existing agreement, certificate, document agreement or instrument, in each case other documentation that would be effective prior to the Completion Date Closing or would be effective if (4) require the Completion does not occur Company, any of the Company Subsidiaries or any of their respective boards of directors (except (xor equivalent bodies) to approve or authorize the extent required by Section 7.9(b)Financing, applicable Allergan Supplemental Indenturesand (ii) no action, liability or obligation (yincluding any obligation to pay any commitment or other fees or reimburse any expenses) customary officers’ certificates of the Company, its Subsidiaries, or any of their respective Representatives under any certificate, agreement, arrangement, document or instrument relating to the execution thereof that would not conflict with applicable Law Financing shall be effective until the Closing.
(c) Parent shall (i) promptly upon request by the Company, reimburse the Company for all of its fees and would be accurate in light expenses (including fees and expenses of counsel and accountants) incurred by the Company, any of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above)Company Subsidiaries, (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required any cooperation contemplated by this Section 7.9(b), Allergan shall, 5.05 and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause indemnify and hold harmless the Company, the Company Subsidiaries and its and their Representatives against any representation or warranty in this Agreement to be breached by Allergan or any claim, loss, damage, injury, liability, judgment, award, penalty, fine, Tax, cost (including cost of its Subsidiaries (unless waived by AbbVieinvestigation), expense (iiiincluding fees and expenses of counsel and accountants) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) settlement payment incurred as a result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of with, such cooperation or the Financing will be and any information used in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesconnection therewith.
Appears in 2 contracts
Sources: Merger Agreement (Empire District Electric Co), Merger Agreement (Algonquin Power & Utilities Corp.)
Financing Cooperation. (a) Until Prior to the earlier of Merger Closing, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its and their respective officersrepresentatives to, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries Parent such assistance as may be cooperation reasonably requested by AbbVie in writing Parent that is reasonably customary to assist Parent and is reasonably customary in causing the conditions in the Debt Financing Commitment to be satisfied and such cooperation as is otherwise reasonably requested by Parent in connection with the arranging, Debt Payoff and obtaining the Debt Financing in accordance with the terms and syndication conditions of the FinancingDebt Financing Commitments, including using reasonable best efforts with respect tocooperation that consists of:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions, due diligence sessions and sessions with rating agencies and prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely providing customary authorization and representation letters to Financing Sources authorizing the distribution of information to prospective lenders or investors on a confidential basis;
(iii) assisting Parent in the preparation of customary rating agency presentations, lender presentations and high yield road show presentations or memoranda, customary bank offering memoranda, syndication memoranda, private offering memoranda, and other marketing materials or memoranda, including business and financial projections, reasonably requested by Parent or Financing Sources, in each case, in connection with the Debt Financing;
(iv) assisting Parent and Sub in procuring the execution and delivery, effective as of the Effective Time, by the officers of the Company and its Subsidiaries of any customary securities purchase agreement, credit agreement, indentures, notes, guarantees, pledge and security documents, supplemental indentures, currency or interest hedging arrangements, other definitive financing documents, a certificate of the chief financial officer of the Company reasonably satisfactory to the Financing Sources with respect to solvency of the Company and its Subsidiaries on a consolidated basis, a customary “borrowing base” certificate, and other certificates or documents and back-up therefor and for legal opinions as may be reasonably requested by Parent or Financing Sources (including consents of accountants for use of their reports in any materials relating to the Debt Financing) and otherwise reasonably facilitating the pledging of collateral, and the granting of security interests;
(A) furnishing AbbVie Parent and its Financing Sources as promptly as practicable with historical financial audited consolidated balance sheets and other customary information (collectivelyrelated statements of income, stockholders’ equity and cash flows of the “Financing Information”) with respect to Allergan Company and its Subsidiaries as is reasonably requested by AbbVie or prepared in accordance with GAAP for the three most recently completed fiscal years ended at least 90 days before the Merger Closing Date and unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Company and its Subsidiaries prepared in accordance with GAAP for each subsequent fiscal quarter that ended at least 45 days before the Merger Closing Date and for the comparable quarter of the prior fiscal year, (B) furnishing Parent and its Financing Sources and customarily required in Marketing Material for Financings of as promptly as practicable with information regarding the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan Company and its Subsidiaries (A) of the type and form customarily included in private placements under Rule 144A of the Securities Act, including financial statements and pro forma financial statements (including as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days before the Merger Closing Date, prepared after giving effect to the Transactions and the Financing as if the Transactions and the Financing had occurred as of such date (in the case of balance sheets) or at the beginning of such period (in the case of other financial statements) (provided, that would such pro forma financial statements shall not be considered a part of the Required Information unless Parent has provided to the Company by at least five days after the end of the ABL Access Period (x) the information relating to the proposed debt and equity capitalization of the Company and its Subsidiaries after the Effective Time that is reasonably necessary for the Company to prepare the pro forma financial statements and (y) any other information that may be reasonably and timely requested by the Company concerning the assumptions underlying the pro forma adjustments to be made in such pro forma financial statements, which assumptions shall be the responsibility of Parent), in each case, prepared in accordance with GAAP, audit reports, business and other financial data of the type required in a registered offering of debt securities by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 promulgated under the Securities Act, including audit reports of annual financial statements or as otherwise necessary to receive from the Company’s independent accountants (and any other accountant to the extent so required financial statements audited or reviewed by such accountants are or would be included in such offering memorandum) customary “comfort” (which audit reports shall not including “negative assurance” comfort), together with drafts of customary comfort letters that such independent accountants are prepared to deliver upon the “pricing” of any high-yield bonds being issued in lieu of any portion of the Debt Financing, with respect to the financial information to be subject included in such offering memorandum and which, with respect to any “going concern” qualifications)interim financial statements, or shall have been reviewed by the Company’s independent accountants as provided in AU 722 and (BC) providing Parent and its Financing Sources for a period of 50 calendar days from and after the date of this Agreement with all access and information reasonably necessary to permit AbbVie to prepare pro forma financial statements customary and customarily required for Financings the completion of field audits and appraisals of the applicable type;
(iii) providing to AbbVieCompany’s legal counsel and its independent auditors such customary documents Subsidiaries’ accounts receivable and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested inventory in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating obtaining an asset-based loan facility pursuant to the Financing;
Debt Financing Commitments (ivsuch 50 calendar day period, the “ABL Access Period”) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(all such information and documents in this clause (v) obtaining to be furnished by the consents of Allergan’s independent auditors to use their audit reports on Company, together with any replacements or restatements thereof, and supplements thereto, if any such information would go stale or otherwise be unusable under customary practices for such purposes, the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing“Required Information”);
(vi) obtaining Allerganusing reasonable best efforts to cooperate with Parent and Parent’s independent auditors’ efforts to obtain customary comfort letters and assistance reasonable corporate and facilities ratings, landlord waivers and estoppels, non disturbance agreements, Phase I environmental site 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 with respect to the accounting due diligence activities of the Financing SourcesDebt Financing;
(vii) causing using reasonable best efforts to cooperate with Parent and Parent’s efforts to (x) permit Financing Sources to evaluate the Financing to benefit from the existing lender relationships of Allergan Company’s and its Subsidiaries’ current assets, inventory, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements to the extent customary and reasonable and (y) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, provided that such agreements and arrangements will only be effective upon the Merger Closing;
(viii) providing documents reasonably requested by AbbVie or the granting Financing Sources relating Sources, upon reasonable request, access to the repayment or refinancing Company’s and its Subsidiaries’ respective properties, assets and cash management and accounting systems (including cooperating in and facilitating the completion of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date field examinations, collateral audits, asset appraisals, surveys, Phase I environmental site assessments and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completionengineering/property condition reports);
(ix) procuring consents delivery of 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 reasonable use Merger Closing, and giving any other necessary notices, to allow for the payoff, discharge and termination in full on the Merger Closing, of all Indebtedness other than as set forth in Section 6.10(a)(ix) of Allergan’s logos in connection with the Financing Parent Disclosure Schedule (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries“Debt Payoff”); and;
(x) providing at least three (3) Business Days in advance of the Completion Date such furnishing Parent and its Financing Sources promptly with all documentation and other information about Allergan and its Subsidiaries as is which any lender providing or arranging Debt Financing has reasonably requested in writing and that such lender has determined is required by AbbVie at least ten (10) Business Days in advance of the Completion Date regulatory authorities in connection with the such Debt Financing that relates to under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, limitation the USA PATRIOT ACT. Notwithstanding anything to Act; and
(xi) otherwise cooperating with the contrary marketing efforts of the Parent and its Financing Sources for any of the Financing as necessary or reasonably requested by the Parent or its Financing Sources; provided that (u) nothing in this Section 7.9(a) 6.10 shall require such cooperation to the extent it would require the Company to waive or Section 7.9(b) belowamend any terms of this Agreement or agree to pay any fees or reimburse any expenses prior to the Merger Closing or after termination of this Agreement for which it has not received prior reimbursement by or on behalf of Parent, (Av) the pre-Closing board of directors and officers of the Company and the pre-Closing directors and officers of Subsidiaries of the Company shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which any portion of the Financing is obtained, (w) except as set forth in clauses (ii) and (ix) of this Section 6.10(a), none of Allergan the Company nor any of its Subsidiaries shall be required to execute, prior to the Merger Closing, any definitive financing documents, including any credit or other agreements, pledge or security documents, or other certificates, legal opinions or documents in connection with any portion of the Financing, unless such documents, agreements, certificates or opinions will only be effective as of the Effective Time, (x) except as expressly provided above, none of the Company nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective corporate actions prior to the Completion Date or would be effective if Closing to permit the Completion does not occur (except (x) to consummation of the extent required by Section 7.9(b), applicable Allergan Supplemental IndenturesFinancing, (y) customary officers’ certificates relating nothing herein shall require such cooperation from the Company or its Affiliates to the execution thereof that extent it would not conflict unreasonably interfere with applicable Law and would be accurate in light the ongoing operations of the facts and circumstances at the time delivered Company or its Affiliates, and (z) none of the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Company or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan Affiliates or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts Representatives shall have any liability under any certificate, agreement, arrangement, document or instrument relating to cause any such information to be disclosed in a manner that would not result portion of the Financing except, in the loss case of any such privilege)the Company and its Subsidiaries, upon the Merger Closing.
(ivb) deliver or cause Parent shall promptly, upon request by the Company, reimburse the Company for all of its Representatives to deliver any legal opinion or negative assurance letter and its Affiliates’ documented reasonable out-of-pocket costs and expenses (except, including accountants’ fees and reasonable attorneys’ fees) incurred by the Company and its Affiliates in connection with the entry into an Allergan Supplemental Indenture required cooperation of the Company and its Affiliates contemplated by this Section 7.9(b)6.10.
(c) Parent shall indemnify and hold harmless the Company, Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicableits Principal Stockholders, to deliver a customary opinion of counsel to its controlled Affiliates and its and their respective directors, officers, advisors and Representatives (including the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or pre-Closing directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan Company or any of its Subsidiaries Subsidiaries) (unless waived collectively, the “Indemnitees”) for and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by AbbVie), them in connection with the arrangement of the Financing and/or the provision of information utilized in connection therewith (iii) cause any director, officer other than information provided in writing specifically for such use by or employee or shareholder on behalf of Allergan the Company or any of its Subsidiaries Subsidiaries) to incur the fullest extent permitted by applicable Law, other than to the extent any personal liability or of the foregoing arises from (ivi) result in a material violation or breach ofthe willful misconduct, gross negligence, or a default undermaterial breach of its obligations of any of the Company, any its Subsidiaries, its Principal Stockholders, its controlled Affiliates or its or their respective directors, officers, employees, attorneys, accountants or other advisors or Representatives (unless such willful misconduct, gross negligence or material Contract breach results from an action taken (or not taken) by an Indemnitee at the request of Parent or Sub or in order to which Allergan comply (or cause the Company or any of its Subsidiaries is a party, Affiliates to comply) with obligations of the Organizational Documents of Allergan or its Subsidiaries Company or any applicable Law. AbbVie of its Affiliates under this Agreement or any of the Financing Commitments, in which case the exclusion contained in this clause (i) shall cause all non-public not apply) or other confidential (ii) any information provided by or on behalf of Allergan the Company or any of its Affiliates in connection with the Debt Financing to the extent such information is the subject of any of the representations or warranties set forth in Article III and where such information would constitute a breach of any such representation or warranty. Parent’s obligations under Section 6.10(b) and this Section 6.10(c) are referred to collectively as the “Reimbursement Obligations”.
(d) The Company shall or shall cause its Subsidiaries to supplement the Required Information and the other information contemplated by clause (iii) of paragraph (a) on a reasonably current basis to the extent that any such information, to the Knowledge of the Company, contains any material misstatement of fact or omits to state any material fact necessary to make such information not materially misleading. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Financing; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication reputation or goodwill of the Financing will be in a form customary for use in the syndication Company or any of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesits Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (CD&R Associates VIII, Ltd.), Merger Agreement (Emergency Medical Services CORP)
Financing Cooperation. (a) Until Subject to Section 7.13(b), prior to the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9Closing, Allergan shall use its reasonable best effortsDanube shall, and shall cause each of the Danube Subsidiaries and its Subsidiaries to and their respective Affiliates and Representatives to, use its reasonable best efforts, and shall use its their respective reasonable best efforts to cause its provide all reasonable and/or customary cooperation and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary in connection with the arrangingarrangement, obtaining and syndication and/or consummation of the Debt Financing and the transactions related thereto (collectively, the “Available Financing”), including using reasonable best efforts with respect to:
to (i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect provide to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing Amazon at least three five (35) Business Days in advance of prior to the Completion Closing Date such documentation information regarding Danube and other information about Allergan and its the Danube Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the regulatory authorities or any Debt Financing that relates to Sources under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACTAct that is requested by Amazon at least eight (8) Business Days prior to the Closing Date; (ii) participate in a customary and reasonable number of meetings (which may be virtual) between (A) Debt Financing Sources and (B) senior management and the Representatives of Danube and the Danube Subsidiaries (in each instance for this clause (B), with appropriate knowledge and expertise in the subject matter of such meeting), investor presentations, road shows, drafting sessions, due diligence sessions and sessions with Debt Financing Sources and rating agencies and other syndication activities, in each case that are reasonable and/or customary for financings of a type similar to the Available Financing; (iii) furnish to Amazon and the Debt Financing Sources in a timely manner financial and other information regarding Danube and the Danube Subsidiaries as may be reasonably requested by Amazon or any of the Debt Financing Sources in connection with the Debt Financing; (iv) provide customary assistance to Amazon and its Debt Financing Sources in the preparation of (A) any syndication documents and materials, including information memoranda (including an additional bank information memoranda that does not contain material non-public information), customary offering memoranda (including a preliminary and final offering memorandum that is suitable for use in a customary “high-yield road show” for an offering by Amazon), investor presentations and other marketing documents customarily used to arrange financing similar to the Available Financing (collectively, the “Marketing Documentation”) and (B) materials for rating agency presentations; (v) furnish Amazon and the Debt Financing Sources with customary authorization letters with respect to the presence or absence of material non-public information and accuracy of the information contained therein with respect to Danube and the Danube Subsidiaries to be included in the Marketing Documentation and containing a representation that the public-side version does not include material nonpublic information about Danube and the Danube Subsidiaries or their respective securities; (vi) provide customary assistance to Amazon in the negotiation, preparation, execution and delivery of any credit, loan or other agreements, indentures, note purchase agreements or similar agreements, pledge or security documents, interest rate or currency hedging documents or other similar instruments, certificates or documents, and the respective schedules and exhibits thereto, in connection with the Available Financing; (vii) assist Amazon in obtaining surveys, title insurance and other items customarily required in connection with real property mortgages, as reasonably requested by Amazon and to the extent required to be delivered in connection with the Available Financing; (viii) cooperate (and cause counsel to Danube and the Danube Subsidiaries to cooperate) with Amazon’s legal counsel in connection with any legal opinions that may be required to be delivered by Amazon’s legal counsel in connection with the Available Financing (for the avoidance of doubt, Danube’s legal counsel will not be required to deliver any legal opinion); (ix) cause its independent registered public accounting firm to provide customary assistance with the due diligence activities of Amazon and the Debt Financing Sources and the preparation of Marketing Documents; (x) facilitate the obtaining of (A) audit reports, consents and customary comfort letters (including customary “negative assurances” comfort) of accountants and auditors with respect to financial statements and other financial information for Danube and the Danube Subsidiaries included in any Marketing Documentation and (B) the Payoff Letters and the Payoff Letter Ancillaries; (xi) otherwise facilitate the granting of a security interest (and perfection thereof) in collateral (including assistance with the negotiation and preparation of, disclosure schedules and perfection certificates) in connection with the Debt Financing, to the extent not prohibited or restricted under applicable Law or any Contract of Danube or any of its Affiliates, provided that no pledge shall be effective until the Closing; (xii) provide unaudited quarterly and audited annual financial statements for each fiscal quarter or fiscal year ended after the date of this Agreement and prior to the Closing Date in the form provided internally to senior management of Danube as promptly as practicable following the end of such fiscal quarter or fiscal year (but in any event within 45 days following the end of such fiscal quarter (or, with respect to the fiscal quarter ended September 30, 2023, 60 days) or 90 days following the end of such fiscal year), provided that no quarterly financial statements shall be required to be delivered for the fiscal quarter ended June 30, 2023; (xiii) provide customary requested historical financial data of Danube and the Danube Subsidiaries as may be reasonably requested by Amazon and the Debt Financing Sources for Amazon to prepare a customary preliminary offering memorandum suitable for use in a customary “high yield road show” for a private placement of non-convertible debt securities of Amazon pursuant to Rule 144A (without registration rights) promulgated under the Securities Act and other historical financial information of Danube and the Danube Subsidiaries for the preparation by Amazon of customary pro forma financial information and pro forma financial statements to the extent required by Regulation S-X under the Securities Act other accounting rules and regulations of the SEC, and/or the Debt Financing Sources pursuant to any commitment letters; and (xiv) cause the taking of corporate and organizational actions reasonably necessary to permit the closing of Amazon’s Debt Financing; it being understood and agreed that no such corporate or other action will take effect prior to the Closing (other than customary authorization letters and customary representation letters). For the avoidance of doubt, the financial statements referred to in the foregoing clause (xii) will be prepared in accordance with IFRS and the unaudited quarterly financial statements will be reviewed by the independent accountants of Danube as provided in the procedures specified by PCAOB AS 4015; provided that no opinion shall be required with respect to such review of such unaudited financial statements.
(b) Notwithstanding anything to the contrary contained in this Section 7.9(a7.13(a) or Section 7.9(b) below7.13(g), (Ai) none of Allergan neither Sellers, Danube nor any of its the Danube Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (iA) pay any commitment or other similar fee or incur any other liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))in connection with the Available Financing, (ii) execute or deliver including under any definitive financing documents agreement or any other agreement, certificate, document or instrument, or agree related to any change to or modification of any existing agreement, certificate, document or instrumentthe Available Financing, in each case that would be effective case, prior to the Completion Date Closing, (B) commit to taking any corporate or organizational action (including the entering into any agreement but excluding the execution and delivery of customary authorization letters and customary representation letters) that is not contingent upon the Closing, (C) take any action that would be effective if the Completion does not occur conflict with, violate or result in a breach of or default under any Danube Governing Documents, any Contract or any Law, (except (xD) take any action prior to the extent required by Section 7.9(b)Closing that could subject any director, applicable Allergan Supplemental Indenturesmanager, officer or employee of Danube or its Affiliates to any actual or potential personal liability, (yE) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Danube determines in good faith could jeopardize any attorney client privilege of Danube or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries Affiliates (provided that Allergan shall, and Danube shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such develop an arrangement to communicate or provide the applicable information to be disclosed (or a portion thereof) in a manner that would not result in conflict with the loss of any such privilegeforegoing clause), (ivF) deliver cause any director or cause manager of Danube or any of its Representatives Affiliates (other than those directors or managers that will continue in such capacity on and after the Closing Date (and acting in such post-Closing capacity)) to deliver pass resolutions or consents to approve or authorize the execution of Amazon’s Debt Financing, (G) reimburse any legal opinion expenses or negative assurance letter provide any indemnities prior to the Closing, (exceptH) make any representation, warranty or certification that, in the good faith determination of Danube, is not true or (I) provide any cooperation or information that does not pertain to Danube or the Danube Subsidiaries, (ii) the effectiveness of any documentation (other than customary authorization and representation letters) executed by Danube or the Danube Subsidiaries with respect thereto shall be subject to the consummation of Amazon’s Debt Financing and (iii) Danube and the Danube Subsidiaries shall not be required to take any action hereunder that unreasonably interferes with the ongoing operation of their respective businesses. Any information provided to Amazon or any other Person pursuant to Section 7.13(a) shall be subject to the Confidentiality Agreement.
(c) Between the date hereof and the Closing, if, to the knowledge of Danube, any information specifically provided by any of Danube or any Danube Subsidiary to Amazon in connection with the entry into an Allergan Supplemental Indenture required Debt Financing contains any misstatement of any material fact, Danube shall use reasonable best efforts to provide to Amazon as promptly as practicable such information as may be necessary to correct such information.
(d) Other than as set forth below, Amazon acknowledges and agrees that neither ▇▇▇▇▇▇▇, Danube, the Danube Subsidiaries nor any of their respective Affiliates or Representatives shall have any responsibility for, or incur any liability to any person under or in connection with, the arrangement of Amazon’s Debt Financing in connection with the Transactions. Amazon shall indemnify and hold harmless Danube and the Danube Subsidiaries from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of Amazon’s Debt Financing by Amazon and any information utilized in connection therewith, except in the event such liabilities arise out of or result from (i) information provided by Sellers, Danube or the Danube Subsidiaries expressly for use in connection therewith or (ii) the bad faith, gross negligence, fraud or willful misconduct or intentional misrepresentation, by Danube or any of the Danube Subsidiaries, any of their respective Affiliates or any of the Representatives to any of the foregoing.
(e) Danube and the Danube Subsidiaries hereby consent to the use of their logos in connection with the Available Financing; provided, however, that such logos are used solely in a manner that does not intend to violate any existing contractual obligation of Danube or any Danube Subsidiary and does not intend to harm or disparage Danube or any Danube Subsidiary.
(f) Notwithstanding anything to the contrary, the condition set forth in Section 7.9(b8.3(b), Allergan shallas it applies to the obligations of Danube and the Danube Subsidiaries under Section 7.13(a), shall be deemed satisfied unless Amazon’s Debt Financing has not been obtained primarily as a result of a Willful Breach by Danube or any Danube Subsidiary of their obligations under Section 7.13(a).
(g) Prior to the Closing, Amazon shall consult with Danube in good faith with respect to any plans to (i) commence a tender offer, exchange offer and/or consent solicitation or change of control offer for any Danube Notes prior to the Closing, the settlement of which, in each case, will be contingent on the Closing or (ii) redeem or satisfy and discharge any Danube Notes, as of the Closing Date. To the extent requested by Amazon, Danube shall cause its Subsidiaries toprovide reasonable and customary assistance, at Amazon’s sole cost and expense, in connection therewith, including (i) taking any actions reasonably necessary or appropriate to be taken to issue conditional redemption notices and/or conditional notices of offers to purchase the Danube Notes, the redemption or repurchase of which closes at or following Closing Date, or other documents necessary to commence a tender offer, exchange offer and/or consent solicitation or change of control offer, as the case may be, for the Danube Notes and (ii) use their respective reasonable best efforts to cause counsel the applicable trustee to Allergan proceed with a tender offer, exchange offer and/or consent solicitation or its Subsidiarieschange of control offer, as the case may be, for the Danube Notes, and take any such action as is reasonably necessary to cause the applicable trustee and/or other applicable agent to send the notices of offers to purchase and/or redemption, consent solicitation statement and/or other documents necessary to commence such a transaction, to the holders of the Danube Notes on or prior to the Closing Date, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules.
Appears in 2 contracts
Sources: Business Combination Agreement (Bungeltd), Business Combination Agreement (Bungeltd)
Financing Cooperation. (a) Until From the date hereof until the earlier of the Completion and Closing Date or the valid termination of this Agreement pursuant to and Section 9.01 (the “Interim Period”), in accordance order to assist the Company in connection with Article 9obtaining any Company Recapitalization Debt Financing, Allergan shall use its reasonable best effortsSPAC shall, and shall cause each of its Subsidiaries to affiliates and use its commercially reasonable best efforts, and shall use its reasonable best efforts to cause its and their such affiliates’ respective officers, employees and advisors employees, attorneys, agents and other RepresentativesRepresentatives to, including legal and accounting advisors, to use their upon the reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary in connection with the arranging, obtaining and syndication request of the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable noticeCompany, (Ba) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including promptly provide all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing required with respect to SPAC and/or the shareholders of SPAC by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACTAct, and a customary beneficial ownership certification, in each case, as reasonably requested by any financing source in connection with such Company Recapitalization Debt Financing and to the extent reasonably available or accessible to SPAC and (b) reasonably cooperate with the Company with respect to the arrangement of any such Company Recapitalization Debt Financing. Notwithstanding For the avoidance of doubt, the Company’s ability to consummate any Company Recapitalization Debt Financing and SPAC’s compliance with this Section 7.09(a) shall not be construed as conditions to the consummation of the Transactions. The Company shall promptly notify SPAC of the details and descriptions of any proposed Company Recapitalization Debt Financing as such details become available.
(b) Without limiting anything to the contrary in this Section 7.9(a) or Section 7.9(b) belowcontained herein, during the Interim Period, SPAC shall use its reasonable best efforts to enter into the Additional Financing Agreements on such terms as SPAC and the Company shall mutually agree (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are such agreement not to be promptly reimbursed unreasonably withheld, conditioned or delayed) and, if requested by AbbVie upon request by Allergan pursuant to Section 7.9(c))SPAC, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan Company shall, and shall cause its Subsidiaries Representatives to, reasonably cooperate with SPAC in connection with such Additional Financing Agreements (including having the Company’s senior management participate in any investor meetings and roadshows as reasonably requested by SPAC). SPAC shall use their respective reasonable best efforts to cause any such information enter into one or more Additional Financing Agreements with Investors (in addition to Sponsor) that will reasonably agree to permit SPAC, the Company and their respective Representatives to disclose the Investors’ commitments pursuant to the Additional Financing Agreements for investment marketing purposes. Except to the extent permitted pursuant to the terms of the Financing Agreements or otherwise approved in writing by the Company (which approval shall not be unreasonably withheld, conditioned or delayed), during the Interim Period, SPAC shall not (i) reduce the committed investment amount to be disclosed received by SPAC or the Company under any Financing Agreement or reduce or impair the rights of SPAC under any Financing Agreement or (ii) permit any amendment or modification to be made to, any waiver (in a manner that would not result whole or in the loss of any such privilegepart) of, or provide consent to modify (including consent to terminate), (iv) deliver any provision or cause its Representatives to deliver remedy under, or any legal opinion or negative assurance letter (exceptreplacements of, any of the Financing Agreements, in connection with each case, other than any assignment or transfer contemplated therein or expressly permitted thereby (without any further amendment, modification or waiver to such assignment or transfer provision). SPAC and the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and Company shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to consummate the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential Private Placement in accordance with the Confidentiality Agreement; providedFinancing Agreements. Without limiting the foregoing, that Allergan acknowledges and agrees that SPAC shall use its reasonable best efforts to meet the confidentiality undertakings that will be obtained condition to the Closing set forth in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesSection 8.01(h).
Appears in 2 contracts
Sources: Business Combination Agreement (ESGEN Acquisition Corp), Business Combination Agreement (ESGEN Acquisition Corp)
Financing Cooperation. (a) Until Prior to the earlier of Effective Time, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best effortsefforts to, and shall use its reasonable best efforts to cause its the Company Subsidiaries to, and shall use reasonable best efforts to cause their respective officers, employees employees, consultants and advisors and other Representativesadvisors, including legal and accounting advisors, to use their reasonable best effortsof the Company and the Company Subsidiaries to, to provide to AbbVie and its Subsidiaries Parent such assistance cooperation as may be reasonably requested by AbbVie in writing that is customary Parent in connection with the arranging, obtaining and syndication of the Debt Financing, including including, using reasonable best efforts with respect to:
(i) participating in make senior management and assisting with the due diligence, syndication or other marketing advisors of the Financing, including using reasonable best efforts with respect Company and the Company Subsidiaries available to (A) the participation by members of management of Allergan with appropriate seniority participate in a reasonable number of meetings, presentations, road shows, drafting sessions, shows and due diligence sessions with actual or proposed lenders, underwriters, arrangers, initial purchasers or placement agents with respect to the Debt Financing (together with their respective Affiliates and other related Persons, the “Debt Financing Sources”), and in sessions with prospective lendersrating agencies or other syndication activities;
(ii) provide reasonable access by Parent and any Debt Financing Sources, investors and rating agenciestheir respective officers, at times employees, consultants and at locations advisors (including legal, valuation, and accounting advisors) to the books and records, properties, officers, directors, agents and representatives of the Company and the Company Subsidiaries and assist with due diligence activities relating to the Company’s and the Company Subsidiaries’ financial information;
(iii) assist with the preparation of, and subject to the occurrence of the Effective Time, executing and delivering definitive financing documents, including pledge and security documents, original equity certificates and associated transfer powers, guaranties, legal opinions, certificates, management representation letters and other documents, to the extent reasonably acceptable requested by Parent, and otherwise reasonably facilitating the pledging of, and granting, recording and perfection of security interests in, collateral;
(iv) request and cooperate in obtaining customary payoff letters, lien terminations and instruments of discharge, relating to Allergan any indebtedness of the Company and upon reasonable notice, the Company Subsidiaries;
(Bv) assisting assist Parent with AbbVie’s its preparation of customary pro forma financial information and pro forma financial statements and other materials for registration statementsrating agency presentations, offering documents, private placement memoranda, registration statements, bank information memoranda, prospectuses, rating agency presentations business projections and similar documents required used in connection with the Debt Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering providing customary estimates and consenting other forward-looking financial information regarding the further performance of the business of the Company and the Company Subsidiaries to the inclusion or incorporation in any SEC filing related to extent reasonably requested by the Debt Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers)Sources;
(iivi) timely furnishing AbbVie cause its independent accountants to provide assistance and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect cooperation to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable typeParent, including all Historical Financial Statements participating in drafting sessions and other customary information with respect to Allergan and its Subsidiaries (A) accounting due diligence sessions, assisting in the preparation of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of to be included in the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating presentations referred to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
clause (v) obtaining the consents of Allergan’s independent auditors above and providing consent to Parent to use their audit reports on relating to the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing SourcesCompany;
(vii) causing the Financing furnish to benefit from the existing lender relationships of Allergan Parent and its Subsidiaries;Debt Financing Sources all pertinent and customary financial and other information regarding the Company and the Company Subsidiaries reasonably requested by Parent as promptly as practicable following such request to consummate the Debt Financing, including the historical financial statements and other information relating to the Company and its Subsidiaries described in paragraph 3 and paragraph 7 of Exhibit D to the Commitment Letter, including the comfort letters referenced in such paragraph 7 (all such financial statements, information and comfort letters, the “Required Information”); and
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating subject to the repayment or refinancing occurrence of any indebtedness for borrowed money the Closing, take all corporate actions necessary to permit consummation of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtednessDebt Financing; provided, in each case in accordance that nothing herein shall require such cooperation to the extent it would interfere materially and unreasonably with the terms business or operations of the definitive documents governing such indebtedness (provided that any such notice Company or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring Company Subsidiaries. The Company hereby consents to the reasonable pre-approved use in each case of all of Allergan’s its and the Company Subsidiaries’ logos in connection with the Financing (Debt Financing; provided that such logos are used solely in a manner that is not intended to and is not or reasonably likely to harm or disparage Allergan the Company or its any of the Company Subsidiaries or the reputation or goodwill of Allergan the Company or any of the Company Subsidiaries or any of their logos and on such other customary terms and conditions as the Company shall reasonably impose.
(b) Prior to the Effective Time, the Company shall, and shall cause the Company Subsidiaries to, and shall cause their respective officers, employees, consultants and advisors, including legal and accounting advisors of the Company and the Company Subsidiaries to, furnish to Parent and its Debt Financing Sources:
(i) customary authorization and representation letters in connection with the materials and other documents used in connection with the Debt Financing, which may include customary representations that such information does not contain a material misstatement or omission and that the public-side versions of such documents, if any, do not contain material non-public information with respect to the Company, its Affiliates or any of its Subsidiaries)or their respective securities for purposes of any applicable securities laws; and
(xii) providing at least three four (34) Business Days in advance of prior to the Completion Date such anticipated Effective Time, all documentation and other information about Allergan the Company and its the Company Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, regulations (including without limitation, the USA PATRIOT ACT. Patriot Act) to the extent requested at least ten (10) calendar days prior to the anticipated Effective Time, in each case, as required to be delivered pursuant to the Commitment Letter or that is otherwise necessary to satisfy the conditions in Exhibit D thereof.
(c) Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below6.11 to the contrary, (A) none of Allergan neither the Company nor any of its the Company Subsidiaries shall be required to take (i) bear any out-of-pocket cost or permit the taking of any action expense that is not reimbursed pursuant to this Section 7.9(a6.11(c) or Section 7.9(b) below to (i) pay any commitment or other fee or in connection with the Debt Financing prior to the Effective Time, (ii) incur any liability (other than third-party costs and expenses or cause their respective directors, officers or employees to incur any liability) under the Debt Financing prior to the Effective Time that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), is not contingent on the Closing or (iiiii) execute enter into any agreement or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case commitment that would be effective prior to the Completion Date or would be effective if Effective Time (other than such authorization and representation letters described above and the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates consents of accountants for use of their reports in any materials relating to the execution thereof that would not conflict matters described above). Furthermore, Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses incurred by the Company, the Company Subsidiaries and its and their respective Representatives in connection with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered their respective obligations pursuant to this Section 6.11. Parent shall indemnify and hold harmless the clause (i)(D) above)Company, (iii) provide access to the Company Subsidiaries and its and their respective Representatives from and against any and all losses, damages, claims, costs or disclose information that Allergan expenses suffered or incurred by any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, them in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, Debt Financing and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan any information utilized in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence than any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided in writing specifically for use by or on behalf of Allergan the Company or any of its the Company Subsidiaries), in each case other than to the extent any of the foregoing arises from the bad faith, gross negligence or willful misconduct of, or breach of this Agreement by, the Company or any of the Company Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; providedtheir respective Affiliates, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesofficers, directors, employees, accountants, agents or Representatives.
Appears in 2 contracts
Sources: Merger Agreement (Constant Contact, Inc.), Merger Agreement (Endurance International Group Holdings, Inc.)
Financing Cooperation. (a) Until The Parties shall reasonably cooperate in good faith to implement such financing arrangements (including, without limitation, amendments, supplements, modifications, refinancings, replacements, repayments or prepayments of existing financing arrangements) as the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as Parties may be reasonably requested by AbbVie in writing that is customary determine necessary or advisable in connection with the arrangingcompletion of the Merger or other transactions contemplated hereby or with the financing of the Parties and their respective Subsidiaries and joint ventures (including the Surviving Entity and its Subsidiaries and joint ventures) following the effective time (the “Financing”), obtaining including reasonably cooperating with respect to: (i) participating in, and syndication of assisting with, marketing efforts relating to the Financing, including using reasonable best efforts with respect to:
(i) participating assisting in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documentsconfidential information memoranda, private placement memoranda, bank prospectuses, offering memoranda and other customary offering documents and marketing materials; (ii) assisting in the preparation of rating agency presentations and attending and participating in meetings with rating agencies, roadshows, due diligence sessions, drafting sessions and meetings with prospective lenders and debt investors, in each case, at such times as coordinated reasonably in advance thereof; (iii) delivery of documentation and other information reasonably requested by Financing Sources with respect to (x) applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act and (y) the U.S. Treasury Department’s Office of Foreign Assets Control and the Foreign Corrupt Practices Act; (v) delivery of financial information customary or reasonably necessary for the completion of the Financing in connection with the preparation of customary confidential information memoranda, private placement memoranda, prospectuses, rating agency presentations offering memoranda and similar other customary offering or information documents required to be used for the Financing (which financial information, for the avoidance of doubt, may be included in any such confidential information memoranda, private placement memoranda, prospectuses, offering memoranda and other offering or information documents used for or distributed in connection with the Financing); (vi) directing their respective independent auditors to cooperate with the Financing consistent with their customary practice, including by providing customary “comfort letters” (collectively, including customary “Marketing Materialnegative assurances”) and customary assistance with due diligence sessions related theretoactivities, (C) delivering and consenting customary consents to the inclusion or incorporation of audit reports in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included relevant offering or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization lettersmarketing materials, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used filings, in each case, in connection with any proposed issuance and sale of securities; (vii) assisting with the preparation of pro forma financial information and pro forma financial statements; (viii) preparing customary projections, estimates and other forward looking financial information regarding the future performance of such party (and assisting in the preparation of such estimates and other forward looking financial information with respect to the consolidated business of Parent and its Subsidiaries after giving effect to the Merger and the Transactions); (ix) providing customary management representation letters to their respective accountants in relation to such accountants’ providing “comfort letters” in connection with any securities offering made as part of the Financing (“Representation Letters”); and (x) executing and delivering such definitive financing documents, including certificates, Representation Letters, and other documents as may be reasonably necessary to facilitate the Financing. Each Party hereby consents to the use of its and its Subsidiaries’ logos in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not or reasonably likely to harm or disparage Allergan such Party or its Subsidiaries or the reputation or goodwill of Allergan such Party or any of its Subsidiaries); and
. Notwithstanding any other provision set forth herein or in any other agreement between the Company and Parent or its affiliates, the Parties agree that the Parties may share with the Financing Sources customary projections with respect to Parent and its subsidiaries after giving effect to the Merger and the Transactions (x) providing at least three (3) Business Days in advance including, without limitation, with respect to the Company as part of the Completion Date such documentation and other information about Allergan consolidated business of Parent and its Subsidiaries as is reasonably requested (and not on a stand-alone basis)) that the Parties have cooperated in writing by AbbVie at least ten (10) Business Days preparing, and that the Parties, their affiliates and such Financing Sources may share such information with potential Financing Sources in advance of the Completion Date connection with any marketing efforts in connection with the Financing Financing, provided that relates the recipients of such information agree to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, customary confidentiality agreements.
(b) Notwithstanding the USA PATRIOT ACT. Notwithstanding anything to the contrary in this requirements of Section 7.9(a) or Section 7.9(b) below7.14(a), (Ai) none of Allergan nor Parent, the Company, any of its their Subsidiaries nor their respective Representatives shall be required to take enter into any letter, certificate, document, agreement or permit instrument that will be effective prior to the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability Closing (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)Representation Letters), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, nothing in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (xSection 7.14(a) shall require cooperation contemplated thereby to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that it would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan Parent, the Company or its any of their respective Subsidiaries, and (iii) nothing in Section 7.14(a) shall require Parent or the Company to cause its legal counsel to deliver any legal opinions.
(c) Parent and the Company shall reasonably cooperate (i) to obtain customary payoff letters from the holders of any Indebtedness which the Parties reasonably determine to be necessary or advisable to repay in connection with the Merger and (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any make arrangements for such holders of its Subsidiaries (unless waived by AbbVie)Indebtedness to deliver to Parent, (iii) cause any directorsubject to the prior receipt of the applicable payoff amounts, officer or employee or shareholder releases of Allergan or any all related Liens and terminations of its Subsidiaries all related guarantees at, and subject to incur any personal liability or (iv) result in a material violation or breach the occurrence of, or a default underthe Closing.
(d) Notwithstanding the foregoing, any material Contract to which Allergan or any of its Subsidiaries it is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges expressly understood and agrees agreed that the confidentiality undertakings that will be obtained in connection with syndication Parties’ obligation to consummate the Merger and the Transactions are not subject to a financing condition or contingent upon the results of either Party’s efforts to obtain any or all of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesFinancing.
Appears in 2 contracts
Sources: Merger Agreement (Chambers Street Properties), Merger Agreement (Gramercy Property Trust Inc.)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance Consistent with Article 9applicable Laws, Allergan VEREIT shall use its reasonable best effortsefforts to, and shall cause its Subsidiaries and each of its Subsidiaries and its Subsidiaries’ respective officers and employees to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officersto, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie Realty Income and its Subsidiaries such assistance Subsidiaries, at Realty Income’s sole expense, all cooperation as may be reasonably requested by AbbVie in writing by Realty Income that is customary necessary in connection with (i) the Realty Income Credit Agreement Amendment and the Realty Income PPN Amendment, (ii) the arranging, obtaining and syndication of the OfficeCo Debt Financing (as defined in Exhibit A)and (iii) one or more equity or debt offerings of Realty Income, that Realty Income and its Subsidiaries may pursue prior to the Effective Time (any such transaction in clause (ii) or (iii) a “Financing”), including, without limitation, in the event such action is customary in connection with the applicable Financing, including using reasonable best efforts with respect to:
: (i) participating in and assisting cooperate with the due diligence, syndication or other customary marketing of the efforts relating to such Financing, including using reasonable best efforts with respect to assisting in the preparation of customary confidential information memoranda, private placement memoranda, lender presentations, prospectuses, offering memoranda and other customary offering documents and marketing materials; (Aii) assist in the participation by members preparation of management of Allergan with appropriate seniority rating agency presentations and participate in a reasonable number of meetingsmeetings with rating agencies, presentations, road shows, drafting sessionsroadshows, due diligence sessions, drafting sessions and sessions meetings with prospective lenderslenders and debt and equity investors, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, by audio or videoconference at such times as applicable, subject to customary confidentiality provisions and disclaimers);
coordinated reasonably in advance thereof at mutually agreed times; (iiiii) timely furnishing AbbVie and its Financing Sources with historical financial deliver documentation and other customary information (collectively, the “reasonably requested by sources of such Financing Information”) as promptly as reasonably practicable with respect to Allergan (x) applicable “know-your-customer”, FINCEN and anti-money laundering rules and regulations, including the PATRIOT Act and (y) the U.S. Treasury Department’s Office of Foreign Assets Control and the Foreign Corrupt Practices Act, in each case, to the extent such information is required pursuant to the applicable Financing; (iv) deliver as promptly as reasonably practicable all financial information and real property and other diligence materials related to VEREIT and its Subsidiaries as customary or reasonably necessary for the completion of such Financing; (v) direct VEREIT’s independent auditors to cooperate with Financing that is reasonably requested by AbbVie or its a securities offering consistent with their customary practice, including requesting VEREIT’s independent accountants to prepare and deliver customary comfort letters (it being understood that such customary comfort letters shall include a SAS 100 review of any interim financial statements and “negative assurance” comfort covering any “stub” period) if customary for such Financing, in connection with any Financing Sources and customarily required in Marketing Material for Financings of to the applicable typeunderwriters, including all Historical Financial Statements arrangers, initial purchasers or placement agents thereof in each case, on customary terms and other consistent with the customary practice of such independent accountants; (vi) assist with the preparation of pro forma financial information and pro forma financial statements solely with respect to Allergan and its Subsidiaries (A) VEREIT to the extent customary or reasonably necessary for the completion of the Financing, including, if applicable, of the type that would be required by Regulation S-X and Regulation S-K promulgated under the Securities Act if for a public offering of securities of Realty Income and for Realty Income’s preparation of pro forma financial statements; (vii) assist in the Financing were incurred by AbbVie preparation of customary projections, estimates and registered on Form S-3 under other forward looking financial information regarding the Securities Act, including audit reports future performance of annual financial statements VEREIT to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), customary or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings the completion of the applicable type;
Financing; and (iiiviii) providing to AbbVie’s the execution and delivery of such definitive financing documents, including certificates, credit agreements, note purchase agreements, dealer manager agreements, solicitation agent agreements, authorization letters, guarantees, schedules, legal counsel and its independent auditors such customary documents opinions and other customary information relating to Allergan and its Subsidiaries documents, as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating necessary to the facilitate such Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with form and substance reasonably satisfactory to the terms of the definitive documents governing party executing such indebtedness (document; provided that any such notice or payoff letter documents referred to in this clause (viii) shall be expressly conditioned effective no earlier than the Effective Time (other than any authorization letters that are required to be given in advance of such time in order for the Financing to be consummated on or after the CompletionEffective Time);
(ix) procuring . VEREIT hereby consents to the reasonable use of all of Allergan’s its and its Subsidiaries’ logos in connection with the Financing (any Financing; provided that such logos are used solely in a manner that is not intended to and or is not reasonably likely to harm or disparage Allergan VEREIT or its Subsidiaries or the reputation or goodwill of Allergan such party or its Subsidiaries. Notwithstanding any other provision set forth herein or in any other agreement between Realty Income and VEREIT or its affiliates, the parties hereto agree that Realty Income may share with the sources of such Financing customary projections and other confidential information with respect to VEREIT (including information about VEREIT’s Subsidiaries) after giving effect to the Merger and the transactions contemplated hereby that the parties have cooperated in preparing, and that Realty Income, its Subsidiaries and such sources of Financing may share information about VEREIT and its Subsidiaries (notwithstanding anything to the contrary herein or in the Confidentiality Agreement) with potential sources of the Financing in connection with any marketing efforts in connection with the Financing, provided that the recipients of such information agree to customary confidentiality arrangements in form and substance reasonably acceptable to VEREIT.
(b) During the period from the date of this Agreement and the earlier to occur of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 7.1 (the “Interim Period”), Realty Income or one or more of its Subsidiaries may (i) commence any of the following: (A) one or more offers to purchase (including any “change of control offer” under the VEREIT Notes Indenture and/or the notes issued thereunder) any or all of the outstanding debt issued under the VEREIT Notes Indenture for cash (collectively, the “Offers to Purchase”); or (B) one or more offers to exchange any or all of the outstanding debt issued under the VEREIT Notes Indenture for securities issued by the Realty Income or any of its affiliates (the “Offers to Exchange”); and (ii) solicit the consent of the holders of debt issued under the VEREIT Notes Indenture regarding certain proposed amendments thereto (the “Consent Solicitations” and, together with the Offers to Purchase and Offers to Exchange, if any, the “Note Offers and Consent Solicitations”); provided that any such notice or offer shall expressly reflect that, and it shall be the case that, the closing of any such transaction shall not be consummated until the Effective Time. Any Note Offers and Consent Solicitations shall be made on such terms and conditions (including price to be paid and conditionality) as are proposed by Realty Income and which are permitted by the terms of the VEREIT Notes Indenture and applicable Laws, including SEC rules and regulations. Realty Income shall consult with VEREIT regarding the material terms and conditions of any Note Offers and Consent Solicitations, including the timing and commencement of any Note Offers and Consent Solicitations and any tender deadlines. Realty Income shall have provided VEREIT with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal, press release, if any, in connection therewith, and each other document relevant to the transaction that will be distributed by Realty Income in the applicable Note Offers and Consent Solicitations (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Note Offers and Consent Solicitations to allow VEREIT and its counsel to review and comment on such Debt Offer Documents, and Realty Income shall give reasonable and good faith consideration to any comments made or input provided by VEREIT and its legal counsel. Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations (including for the avoidance of doubt any other liability management transaction hereunder that includes a Consent Solicitation), VEREIT shall execute a supplemental indenture to the VEREIT Notes Indenture in accordance with the terms thereof amending the terms and provisions thereof as described in the applicable Debt Offer Documents in a form as reasonably requested by Realty Income (the “Supplemental Indenture”); provided that the amendments effected by such supplemental indenture shall not become operative until the Effective Time. During the Interim Period, at Realty Income’s sole expense, VEREIT shall and shall cause its Subsidiaries to, and shall cause its and their Representatives to, provide all cooperation reasonably requested by Realty Income to assist Realty Income in connection with any Note Offers and Consent Solicitations (including using reasonable best efforts to direct VEREIT’s independent accountants to provide customary consents for use of their reports to the extent required in connection with any Note Offers and Consent Solicitations). The dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any Note Offers and Consent Solicitations will be selected and retained by Realty Income. If, at any time prior to the completion of the Note Offers and Consent Solicitations, VEREIT or any of its Subsidiaries); and, on the one hand, or Realty Income or any of its Subsidiaries, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall use reasonable best efforts to promptly notify the other party, and an appropriate amendment or supplement prepared by Realty Income describing such information shall be disseminated to the holders of the notes outstanding under the VEREIT Notes Indenture.
(xc) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan Realty Income shall promptly, upon request by VEREIT, reimburse VEREIT and its Subsidiaries as is reasonably requested in writing for all reasonable and documented out-of-pocket costs and expenses paid to third parties (including advisor’s fees and expenses) incurred by AbbVie at least ten (10) Business Days in advance of the Completion Date VEREIT and its Subsidiaries in connection with the Financing that relates cooperation provided pursuant to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a5.14 and indemnify and hold harmless VEREIT, its Subsidiaries and their respective officers, directors and other Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties (collectively, “Losses”) suffered or incurred by them in connection with any Financing, any information utilized in connection therewith or any action taken by VEREIT or any Subsidiary of VEREIT pursuant to this Section 7.9(b5.14, in each case, whether or not the Merger is consummated or this Agreement is terminated; provided, however, that the foregoing indemnity shall not apply with respect to any Losses resulting from any gross negligence or willful misconduct of VEREIT or its Subsidiaries or Representatives or a Willful Breach of VEREIT or any Subsidiary of VEREIT under this Agreement.
(d) belowNotwithstanding the requirements of Section 5.14(a), (A) none of Allergan neither VEREIT nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to 5.14 that (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) unreasonably interfere unreasonably with the business or operations of Allergan VEREIT or its Subsidiaries, (ii) would require VEREIT, its Subsidiaries or any Persons who are directors or officers of VEREIT or its Subsidiaries to pass resolutions or consents to approve or authorize the execution of any Financing or any Note Offers or Consent Solicitations or execute or deliver any certificate, document, instrument or agreement or agree to any change or modification of any existing certificate, document, instrument or agreement, in each case, that is effective prior to the Effective Time, or that would be effective if the Effective Time does not occur (other than (x) authorization letters contemplated by Section 5.14(a)(viii) and (y) to the extent required to be executed or delivered prior to the Effective Time pursuant to Section 5.14(a)), (iii) would cause any representation or warranty in this Agreement to be breached by Allergan VEREIT or any of its Subsidiaries, (iv) would require VEREIT or any of its Subsidiaries (unless waived by AbbVie)to pay any commitment or other similar fee prior to the Effective Time or incur any other expense, liability or obligation in connection with any Financing or any Note Offers and Consent Solicitations prior to the Effective Time, or have any obligation of VEREIT or any of its Subsidiaries under any agreement, certificate, document or instrument be effective until the Effective Time, (iiiv) could reasonably be expected to cause any director, officer or employee or shareholder stockholder of Allergan VEREIT or any of its Subsidiaries to incur any personal liability liability, (vi) could reasonably be expected to conflict with the organizational documents of VEREIT or its Subsidiaries or any Laws, (ivvii) could reasonably be expected to result in a material violation or breach of, or a default (with or without notice, lapse of time, or both) under, any material Contract contract to which Allergan VEREIT or any of its Subsidiaries is a party, (viii) would require providing access to or disclosing information that would reasonably be expected to jeopardize any attorney-client privilege of VEREIT or any of its Subsidiaries, (ix) would require delivering or causing to be delivered any opinion of counsel in connection with any Financing or any Note Offers or Consent Solicitations (other than to the Organizational Documents extent required by Section 5.14(b) in connection with the entry into a Supplemental Indenture, an opinion of Allergan counsel if the trustee under the VEREIT Notes Indenture requires an opinion of counsel to VEREIT) or (x) could reasonably be expected to cause VEREIT to fail to qualify as a REIT for federal income tax purposes (including by reason of potential payments under Section 5.14(c) from such action).
(e) Upon the request of Realty Income, VEREIT shall use reasonable best efforts to, and cause its Subsidiaries or and each of its and its Subsidiaries’ respective officers and employees to use commercially reasonable efforts to, facilitate the payoff of the VEREIT Credit Agreement, including obtaining a customary payoff letter in connection therewith (the “Credit Agreement Payoff”); provided that any applicable Law. AbbVie such action described above shall cause all non-public or other confidential information provided not be required unless it can be and is conditioned on the occurrence of the Closing.
(f) For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 5.14 represent the sole obligation of VEREIT, its Subsidiaries and their respective Representatives with respect to cooperation in connection with the arrangement of any Financing to be obtained by or on behalf of Allergan Realty Income or any of its Subsidiaries and OfficeCo with respect to the transactions contemplated by this Agreement and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or Representatives pursuant modify such obligations. Notwithstanding the foregoing, it is expressly understood and agreed that the parties’ obligation to consummate the Merger and the transactions contemplated hereby are not contingent upon the completion of any Financing, any Note Offers or Consent Solicitations or the Credit Agreement Payoff. Notwithstanding anything to the contrary in this Agreement (including the Exhibits and Schedule hereto), any breach by VEREIT of any of the covenants required to be performed by it under this Section 7.9 to 5.14 shall not be kept confidential considered in accordance with determining the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication satisfaction of the Financing will be condition set forth in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesSection 6.3(b).
Appears in 2 contracts
Sources: Merger Agreement (VEREIT Operating Partnership, L.P.), Merger Agreement (Realty Income Corp)
Financing Cooperation. (a) Until Prior to the Closing Date (or until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with the provisions in Article 9VII), Allergan Seller shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best effortsprovide, and shall use its commercially reasonable best efforts to cause the other Seller Entities and its and their respective officers, employees Affiliates and advisors and other Representatives, including legal to provide, at Purchaser’s sole cost and accounting advisorsexpense, to use their reasonable best efforts, to provide to AbbVie such cooperation as is customary and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary in connection with the arranging, obtaining and syndication of the Financing, including using reasonable best efforts Purchaser with respect toto the Debt Financing. Such cooperation shall include:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and drafting sessions with prospective lendersincluding facilitating direct contact between senior management and representatives of Seller, investors on the one hand, and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectivelySources, “Marketing Material”) on the other hand, and permitting the Financing Sources involved in the Debt Financing to conduct customary due diligence sessions related thereto, (C) delivering and consenting with respect to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements Business and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) Purchased Assets, all during normal business hours and (D) delivering customary authorization letters, management representation letters, confirmations, with reasonable prior notice at reasonable locations and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers)arrangements for syndicated bank loans;
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information providing (collectively, A) the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel such other pertinent and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries regarding the Purchased Assets as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
by Purchaser (iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing in order to satisfy the Financing to benefit from conditions set forth in the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected therebyTerm Sheet, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that information is not intended to readily available or within Seller’s possession and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill necessary for Purchaser’s preparation of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information statements referred to in item 11 of Conditions to Closing section in the Term Sheet or projectionsas otherwise necessary to permit Seller’s independent accountants to issue customary “comfort letters” including as to customary negative assurance and change period in connection therewith to the applicable underwriters, (B) none initial purchasers or placement agents in connection with any issuance of debt securities in a capital markets transaction comprising part of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan Debt Financing; provided that Seller shall not be required to adopt resolutions provide to or consents approving advise Purchaser regarding (1) the agreementsproposed aggregate amount of the Debt Financing, documents or instruments pursuant together with assumed interest rates and fees and expenses relating to which the incurrence of the Debt Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv2) result in a material violation any post-Closing or breach ofpro forma cost savings, or a default undersynergies, any material Contract to which Allergan or any of its Subsidiaries is a partycapitalization, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public ownership or other confidential information provided pro forma adjustments in each case arising from the transactions contemplated by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules.;
Appears in 2 contracts
Sources: Asset Purchase Agreement (Aterian, Inc.), Asset Purchase Agreement (Aterian, Inc.)
Financing Cooperation. (ai) Until During the earlier of period from the Completion and the valid termination date of this Agreement pursuant to and the Effective Time, the parties hereto shall cooperate in accordance good faith to implement any necessary, appropriate or desirable arrangements in connection with Article 9each party’s indentures, Allergan shall credit agreement or other documents governing or relating to indebtedness with respect to any financing matters in connection with the transactions contemplated by this Agreement.
(ii) Raytheon will use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause deliver to UTC two (2) business days prior to the Effective Time an executed copy of a customary payoff letter from the administrative agent under the Raytheon Revolver, in form and substance reasonably satisfactory to UTC relating to the repayment in full of all obligations thereunder and the termination of all commitments in connection therewith.
(iii) The parties hereto acknowledge and agree that, prior to the Effective Time, it may be necessary for UTC and/or Raytheon to enter into financing transactions (including the raising of new financing, the refinancing of existing indebtedness, the retirement of existing indebtedness and/or producing amendments, modifications or consents in relation to existing indebtedness) (any such financing transaction, a “Pre-Merger Financing Transaction”). In connection with any Pre-Merger Financing Transaction, each of Raytheon (with respect to itself and its subsidiaries) and their respective officers, employees UTC (with respect to itself and advisors and other Representatives, including legal and accounting advisorsthe subsidiaries of UTC RemainCo) agree, to the extent requested by the other, to cooperate with respect to, and use their reasonable best efforts, efforts to provide such information to AbbVie and its Subsidiaries such assistance the other as may be reasonably requested by AbbVie in writing that is customary be, necessary or desirable in connection with the arrangingstructuring, obtaining marketing and syndication execution of the Financingany Pre-Merger Financing Transaction, including using reasonable best efforts with respect to:
(iA) participating in meetings and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions in connection with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable noticethe Pre-Merger Financing Transaction, (B) assisting with AbbVie’s the preparation of customary materials for registration statements, offering documents, private placement memoranda, bank any portion of the disclosure in relation to the Pre-Merger Financing Transaction that relates to the Merger or the transactions contemplated by this Agreement (including any financial information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”operational data) and due diligence sessions related thereto, (C) delivering and consenting to delivering, or procuring the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization delivery of, such information, certificates, comfort letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial letters and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of necessary or desirable by any customary negative assurance opinions and customary comfort letters relating party to the Financing;any such Pre-Merger Financing Transaction.
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below5.1(e), (A) none of Allergan neither Raytheon nor any of its Subsidiaries UTC shall be required to take or permit the taking of disclose any action information pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x5.1(e) to the extent required by Section 7.9(b)that (A) in the reasonable good faith judgment of such party, applicable Allergan Supplemental Indenturesany Applicable Law requires such party or its subsidiaries to restrict or prohibit access to any such information, (yB) customary officers’ certificates relating in the reasonable good faith judgment of such party, the information is subject to the execution thereof that would not conflict with applicable Law and would be accurate in light confidentiality obligations to a third party or (C) disclosure of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that or document would not result in the loss of any such attorney-client privilege, attorney work product or other relevant legal privilege; provided that, with respect to clauses (A) through (C) of this Section 5.1(e), (iv) deliver Raytheon or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its SubsidiariesUTC, as applicable, shall use its commercially reasonable efforts to deliver a customary opinion (1) obtain the required consent of counsel any third party necessary to provide such disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), party and (C3) neither Allergan nor any utilize the procedures of its Subsidiaries shall be required to take a joint defense agreement or implement such other techniques if the parties determine that doing so would reasonably permit the taking disclosure of any action that would (i) interfere unreasonably with the business such information without violating Applicable Law or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesjeopardizing such privilege.
Appears in 2 contracts
Sources: Merger Agreement (Raytheon Co/), Merger Agreement (United Technologies Corp /De/)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9IX, Allergan the Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie Parent and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing Parent that is customary in connection with the offering, arranging, obtaining and syndication obtaining, syndication, consummation, issuance or sale of the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan the Company with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan the Company and upon reasonable notice, (B) assisting with AbbVieParent’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations presentations, syndication documents and other syndication materials, including information memoranda, lender and investor presentations, bank books and other marketing documents and similar documents required in connection with any portion of the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan the Company included or incorporated by reference into the Allergan Company SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie Parent and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan the Company and its Subsidiaries as is reasonably requested by AbbVie Parent or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan the Company and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie Parent and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie Parent to prepare pro forma financial statements in accordance with Regulation S-X in order to comply with Parent’s obligations under the Exchange Act and the rules and regulations thereunder or as customary for Financings of the applicable type;
(iii) providing to AbbVieParent’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan the Company and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allerganthe Company’s independent auditors to provide customary cooperation with respect to the Financing, including by using reasonable best efforts to cause the Company’s independent auditors to provide customary comfort letters (including “negative assurance” comfort, if customary and appropriate) in connection with any capital markets transaction comprising a part of the Financing or contemplated as part of any refinancing of the Financing, including at the time of pricing and closing, to the applicable Financing Sources, and by providing customary representation letters to the extent required by such independent auditor in connection with the foregoing;
(v) obtaining the consents of Allerganthe Company’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan the Company and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allerganthe Company’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan the Company and its Subsidiaries;
(viii) cooperating with internal and external counsel of Parent in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver in connection with the Financing;
(ix) providing documents reasonably requested by AbbVie Parent or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan the Company or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or Liens or guarantees (if any) effected thereby, including customary payoff letters delivered to Parent in draft form at least four (4) Business Days prior to the Completion Date and in executed form at least one (1) Business Day prior to the Completion Date and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtednessindebtedness or waived by the requisite holders, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall may be expressly conditioned on the Completion);
(ixx) procuring consents to the reasonable use of all of Allerganthe Company’s logos in connection with the Financing (provided provided, that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan the Company or its Subsidiaries or the reputation or goodwill of Allergan the Company or any of its Subsidiaries); and;
(xxi) providing at least three four (34) Business Days in advance of the Completion Date such documentation and other information about Allergan the Company and its Subsidiaries as is reasonably requested in writing by AbbVie Parent at least ten nine (109) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT; and
(xii) assisting with the preparation of and entry into (as of the Completion Date) definitive Financing agreements (including review of any disclosure schedules related thereto for completeness and accuracy) including credit agreements, note purchase agreements, indentures, schedules, exhibits, guarantees, pledge and security documents, perfection certificates, customary officers’ certificates and corporate resolutions, as applicable. In addition, in connection with any marketing efforts of the Parent Parties’ Financing, the Parent may reasonably request the Company to file a Current Report on Form 8-K pursuant to the Exchange Act that contains material non-public information with respect to any member of the Company Group, which Parent, in consultation with the Financing Sources and upon the advice of outside counsel, reasonably determines is necessary to include in a registration statement, customary offering memorandum or other offering document for the Financing (each an “Offering Document”) in order to (i) correct any untrue statement of a material fact or an omission of a material fact necessary in order to make the statements therein not misleading or (ii) to cause such Offering Document to comply with the requirements of the Securities Act. The Company shall consider such request promptly, and if the Company approves of such request (such approval not be unreasonably withheld), then the Company shall promptly file such Current Report on Form 8-K in a form reasonably satisfactory to the Company. Notwithstanding anything to the contrary in this Section 7.9(a) 7.7, the Company shall not be obligated to effect any such filing of a Current Report on Form 8-K pursuant to this Section 7.7 if in the good faith judgment of the Company Board it would be detrimental to the Company and its shareholders for such Current Report on Form 8-K to be filed at such time or in the near future, in which case the Company shall not be obligated to file such Current Report on Form 8-K. Notwithstanding anything to the contrary in this Section 7.9(b) below7.7(a), (A) none of Allergan the Company nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a7.7(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie Parent upon request by Allergan the Company pursuant to Section 7.9(c7.7(b)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (zy) the authorization letter letters and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan the Company or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan the Company or any of its Subsidiaries (provided provided, that Allergan the Company shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered))opinion, (v) be an issuer or other obligor with respect to the Financing that is effective prior to the Completion, Completion or (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Company Board, officers of Allerganthe Company, or directors and officers of the Subsidiaries of Allergan the Company shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures)obtained, and (C) neither Allergan the Company nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan the Company or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan the Company or any of its Subsidiaries (unless waived by AbbVieParent), (iii) cause any director, officer or employee or shareholder of Allergan the Company or any of its Subsidiaries to incur any personal liability or liability, (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan the Company or any of its Subsidiaries is a party, the Organizational Documents of Allergan the Company or its Subsidiaries or any material applicable Law, (v) cause any covenant, representation or warranty in this Agreement to be breached or condition to this Agreement to fail to be satisfied or (vi) deliver any certificate that it reasonably believes in good faith contains any untrue certifications. AbbVie Parent shall cause all non-public or other confidential information provided by or on behalf of Allergan the Company or any of its Subsidiaries or Representatives pursuant to this Section 7.9 7.7 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan the Company acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules.
(b) If the Completion does not occur and following the valid termination of this Agreement in accordance with its terms, Parent shall reimburse the Company promptly upon written demand for all reasonable and documented third-party out-of-pocket costs and expenses (including reasonable attorneys’ fees) actually incurred by the Company Group in connection with its obligations under this Section 7.7 (and, for the avoidance of doubt, if Completion does occur, such costs and expenses may be paid by the Company or Parent at or following Completion) provided that the Company Group (and not Parent) shall be responsible for any amounts that would otherwise have been incurred in the absence of the financing cooperation contemplated by this Section 7.7, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, expenses (including attorneys’ fees), interest, judgments and penalties suffered or incurred by them, in connection with this Section 7.7 (other than to the extent resulting from (x) information provided by the Company or its Subsidiaries in writing in accordance with the terms hereof to the extent such information, as provided, is inaccurate or misleading or (y) the Company’s or its Subsidiaries’ or Representatives’ willful misconduct or gross negligence, as determined by a final non-appealable judgment of a court of competent jurisdiction), in each case whether or not the Completion is consummated or this Agreement is terminated.
Appears in 2 contracts
Sources: Transaction Agreement (Avadel Pharmaceuticals PLC), Transaction Agreement (Alkermes Plc.)
Financing Cooperation. (a) Until Prior to the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9Closing, Allergan Seller shall, shall use cause its reasonable best effortsSubsidiaries, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective directors, officers, employees and employees, advisors and other Representativesrepresentatives to, including legal and accounting advisorsat the sole expense of Buyer, to use their reasonable best effortsefforts to cooperate with Buyer to the extent necessary and customary for Debt Financing contemplated by the Debt Commitment Letter, equity financing contemplated by the Equity Commitment Letter or any offering of the Buyer’s common stock prior to provide the Closing which proceeds are to AbbVie and its Subsidiaries such assistance be used as may be a portion of the Purchase Price as a reduction to the aggregate proceeds of the Financing (the “Pre-Closing Equity Offering”) as reasonably requested by AbbVie in writing that is customary Buyer in connection with the arranging, obtaining and syndication arrangement of the Financing (including for purposes of this Section 5.15, any Alternative Financing) or the Pre-Closing Equity Offering and the termination and payment in full of the existing Indebtedness of the Companies and their respective Subsidiaries, including using reasonable best efforts with respect to:to (provided that the delivery of the items referred to in clauses (vi)(x)(A), (vi)(x)(B) and (vi)(y) below shall not be subject to such reasonable best efforts qualifiers):
(i) participating assist in the preparation for and assisting upon reasonable advance notice participate (but only together with the due diligence, syndication or executive officers of Buyer and other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of senior management and representatives of Allergan with appropriate seniority Buyer) at reasonable times in a reasonable number of meetings, drafting sessions, presentations, road shows, drafting sessions, and rating agency and due diligence sessions (including accounting due diligence sessions), including making available management and sessions with prospective lendersthe members of the finance department of Seller and the Group Companies to participate in such meetings, investors sessions, presentations and rating agencies, at times road shows;
(A) provide reasonable assistance to Buyer and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s its Financing Sources in the preparation of (x) customary materials for registration statements, offering documents, private placement memoranda, road show presentations, bank information memoranda, prospectuses, rating agency presentations prospectuses and similar documents required reasonably necessary for any portion of the Financing or the Pre-Closing Equity Offering (including, where appropriate, a “public” version and a “private” version), including reviewing and commenting on Buyer’s draft of a business description and “Management’s Discussion and Analysis” of the Group Companies’ financial statements to be included in connection offering documents contemplated by the Financing or the Pre-Closing Equity Offering and (y) customary materials for rating agency presentations, in each case including using reasonable best efforts to make available management and the members of the finance department of Seller and the Group Companies to provide reasonable assistance to Buyer in Buyer’s preparation of any of the foregoing documents, memoranda, prospectuses or similar documents and/or materials relating to the Group Companies (it being understood that Seller will have no obligation to provide pro forma financial information (except to assist in the preparation thereof to the extent provided in clause (ii) of the definition of “Required Information”) or post-Closing financial information), (B) furnish Buyer and the Financing Sources with the Financing (collectivelyRequired Information as promptly as reasonably practicable, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to inform Buyer if Seller shall have Knowledge of any facts that would likely require the inclusion or incorporation in restatement of any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into in the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material Required Information for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual such financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable typecomply with GAAP;
(iii) providing to AbbVie’s legal counsel cooperate with the marketing efforts of Buyer and its independent auditors such Financing Sources for any portion of the Financing or the Pre-Closing Equity Offering (including by providing in connection therewith one or more customary documents and other authorization letters authorizing the distribution of the offering materials, customary representation letters with respect to the presence or absence of material non-public information relating to Allergan and its Subsidiaries and/or customary representation letters as may be reasonably requested in connection with their delivery by the independent accountants of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors Group Companies to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of consents) as reasonably requested by Buyer or the Financing Sources;
(viiiv) causing assist Buyer in obtaining waivers, consents, estoppels and approvals from other parties to material leases, Encumbrances and agreements relating to the Group Companies, and appraisals, surveys and title insurance, and releases and other evidence of satisfaction of Encumbrances (other than Permitted Encumbrances), in each case as reasonably requested by Buyer or the Financing to benefit from the existing lender relationships of Allergan and its SubsidiariesSources;
(viiiv) providing documents reasonably cause the independent auditors of the Companies and their respective Subsidiaries to provide, consistent with customary practice, (A) reasonable assistance and cooperation to Buyer, including attending accounting due diligence sessions and (B) accountant’s comfort letters and consents, including as to customary negative assurances, requested by AbbVie the Buyer or the Financing Sources relating and customary for financings similar to the Financing or the Pre-Closing Equity Offering;
(vi) (x) with respect to the Indebtedness of the Group Companies set forth on Schedule 3.10(a)(iii), (A) obtain the delivery of customary payoff letters, releases and/or terminations executed by the applicable creditor or each agent therefor and (B) cause the delivery of notices of prepayment within the time periods required by the relevant agreements governing such Indebtedness (which notices may be conditioned on the occurrence of the Closing on the Closing Date); and (y) obtain all other documents and instruments and take all such other actions as may be necessary to evidence the termination, discharge, release and/or repayment or refinancing in full of all Indebtedness of the Group Companies set forth on Schedule 3.10(a)(iii) and the release of all guarantees and Encumbrances securing the foregoing, including the delivery of lien and guarantee terminations and releases, UCC-3 termination statements and mortgage releases, in each case in form and substance reasonably acceptable to the Buyer and the Financing Sources; provided that, in the case of each of clauses (x) and (y) above, (I) Buyer shall provide all funds required to effect the repayment of all such Indebtedness and the cash collateralization of all letters of credit, and Seller shall have no obligation to effect any indebtedness such alternative arrangement for borrowed money letters of Allergan credit, and (II) in no event shall this Section 5.15(a)(vi) require Seller or any of its Subsidiaries to be repaid cause any termination or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (prior to the extent requiredoccurrence of the Closing;
(vii) evidence that notice assist with the preparation and execution of any such repayment has been timely delivered pledge and security documents, other definitive financing documents (including any schedules or exhibits thereto) or other certificates or documents customary for the Financing or the Pre-Closing Equity Offering or as may be reasonably requested by Buyer or the Financing Sources (it being understood that none Seller or any of its Affiliates or any of their representatives will be required to provide any certificate with respect to solvency matters) and otherwise facilitate the holders pledging of such indebtednesscollateral, in each case as may be reasonably requested by Buyer and in accordance form and substance reasonably acceptable to Buyer and the Financing Sources;
(viii) cooperate with the terms due diligence investigation of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on Financing Sources, including, subject to Section 5.3, providing reasonable access, during normal working hours and upon reasonable advance notice, as necessary for completion of field exams and audits in connection with the Completion)borrowing base for the asset-based loan component of the Financing, asset appraisals and engineering/property condition reports and the evaluation of the current assets, cash management and accounting systems, policies and procedures of the Group Companies relating thereto for the purpose of establishing collateral arrangements;
(ix) procuring reasonably assist Buyer to satisfy on a timely basis all conditions to funding that are applicable solely to the Group Companies with respect to the Financing under the Commitment Letters;
(x) take all corporate or similar actions reasonably requested by Buyer that are necessary or customary to permit the consummation of the Financing (it being understood that none of Group Companies will be required to take any corporate or similar action that is effective prior to the occurrence of the Effective Time or that would be effective if the Effective Time does not occur); and
(xi) provide at least five (5) Business Days prior to the Closing Date all customary documentation and other information as is required by applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act and FATCA to the extent requested at least ten (10) Business Days prior to the Closing Date.
(b) Seller hereby consents to the reasonable use of all of Allergan’s the Group Companies’ corporate logos in connection with the initial syndication or marketing of the Financing (provided or the Pre-Closing Equity Offering; provided, that such logos are used solely in a manner that is not intended to and is not or reasonably likely to harm or disparage Allergan or its Subsidiaries the Group Companies or the reputation or goodwill of Allergan the Group Companies or any of its Subsidiaries); andtheir marks.
(xc) providing at least three (3) Business Days in advance of Notwithstanding the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding foregoing or anything else contained herein to the contrary in this Section 7.9(a) or Section 7.9(b) belowcontrary, (Ai) none of Allergan nor Seller or any of its Subsidiaries shall be required to take incur any expenses or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses payment that are to be is not promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, Buyer in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the CompletionClosing or otherwise incur any liability in connection with the Financing and/or redemption and/or discharge of the Indebtedness of the Group Companies prior to the Closing, (viii) commence other than customary authorization and representation letters (authorizing the distribution of the offering materials and with respect to the presence or absence of material non-public information and as may be requested by the independent accountants of the Group Companies to provide their comfort letters and consents) and any Allergan Note Offers customary documents required to be executed or delivered in connection with the closing of a debt offering into escrow, no obligation of the Group Companies under any certificate, document or instrument executed or delivered in connection with the foregoing shall be effective until the Closing Date and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, Group Companies or any of their respective directors or officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to execute, deliver enter into or take any action under any such certificate, document or instrument that is not contingent upon the Closing or adopt any resolutions or consents approving the agreements, documents or and instruments pursuant to which the Financing is obtained obtained, or be required to deliver, or cause to be delivered, any Allergan Note Offers legal opinion by its counsel, and Consent Solicitations is consummated (except iii) nothing in this Section 5.15 shall require cooperation to the execution extent that it would unreasonably interfere with the business or the ongoing operations of Seller and delivery its Subsidiaries (it being agreed that the matters described in clauses (i) through (ix) and (xi) of any applicable Allergan Supplemental IndenturesSection 5.15(a) do not so unreasonably interfere), and (Civ) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty nothing in this Agreement Section 5.15 shall require cooperation to the extent that it would reasonably be breached by Allergan expected to conflict with or violate any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries Group Company’s organizational documents or any applicable Law. AbbVie Buyer shall, promptly upon request, reimburse Seller for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by Seller and the Group Companies in connection with fulfilling its obligations pursuant to this Section 5.15, which reimbursement obligation shall cause all nonsurvive termination of this Agreement. Buyer shall indemnify, defend and hold harmless Seller and its Affiliates, and their respective pre-public Closing directors, officers, employees, agents, representatives and professional advisors, from and against any liability, loss, damages, claims, costs, expenses, awards, judgments and penalties of any type suffered or incurred by them in connection with the arrangement of the Financing, any information provided in connection therewith (other confidential than arising from historical information relating to the Group Companies provided by Seller in writing specifically for use in the Financing offering documents) and any misuse of the logos or marks of Group Companies except in the event such liabilities or losses arose out of or result from the bad faith, gross negligence, material breach or willful misconduct of Seller, any of its Subsidiaries or any of their respective representatives, which indemnification obligation shall survive termination of this Agreement.
(d) The Required Information (taken as a whole), when delivered by Seller to Buyer, will not contain any untrue statement of a material fact regarding the Group Companies or omit to state a material fact regarding the Group Companies necessary in order to make such information contained in such Required Information, in light of the circumstances in which such information is disclosed, not misleading. If Seller becomes aware that the Required Information, when taken as a whole, contains any untrue statement of a material fact regarding the Group Companies or omits to state a material fact regarding the Group Companies necessary in order to make such information contained in such Required Information, in light of the circumstances in which such information is disclosed, not misleading, Seller will use reasonable best efforts to update or supplement such information such that, after giving effect to such updates and supplements, such information, when taken as a whole along with any other written information or data provided by or on behalf of Allergan Seller, does not contain as of the time provided any untrue statement of material fact regarding the Group Companies or omit to state any material fact regarding the Group Companies necessary in order to make such information contained in such Required Information, in light of the circumstances in which such information is disclosed, not misleading.
(e) For the avoidance of doubt, Buyer may, to most effectively access the financing markets, require the reasonable cooperation of Seller and its Subsidiaries or Representatives pursuant to under, and subject to, this Section 7.9 5.15 at any time, and from time to be kept confidential in accordance with time and on multiple occasions, between the Confidentiality Agreement; provided, that Allergan date hereof and the Closing.
(f) Buyer acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication obtaining of the Financing will be in Financing, or any Alternative Financing, is not a form customary for use in condition to the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesClosing.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Beacon Roofing Supply Inc)
Financing Cooperation. (a) Until Consistent with applicable Laws, the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Company shall use its reasonable best effortsefforts to, and shall cause its Subsidiaries and each of its Subsidiaries and its Subsidiaries’ respective officers and employees to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officersto, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie Parent and its Subsidiaries such assistance Subsidiaries, at Parent’s sole expense, all cooperation as may be reasonably requested by AbbVie in writing by Parent in connection with (i) one or more equity or debt offerings or issuances of Parent, that Parent and its Subsidiaries may pursue prior to the Effective Time and (ii) the assumption, restatement or refinancing of the Company Term Loan Credit Agreements by Parent and its Subsidiaries (any such transaction in clauses (i) or (ii) a “Financing”), including, without limitation, in the event such action is customary in connection with the arranging, obtaining and syndication of the applicable Financing, including using reasonable best efforts with respect to:
: (i) participating in and assisting cooperate with the due diligence, syndication or other customary marketing of the efforts relating to such Financing, including using reasonable best efforts with respect to assisting in the preparation of customary confidential information memoranda, private placement memoranda, lender presentations, prospectuses, offering memoranda and other customary offering documents and marketing materials; (Aii) assist in the participation by members preparation of management of Allergan with appropriate seniority rating agency presentations and participate in a reasonable number of meetingsmeetings with rating agencies, presentations, road shows, drafting sessionsroadshows, due diligence sessions, drafting sessions and sessions meetings with prospective lenderslenders and debt and equity investors, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, at such places (which may be by audio or videoconference) as applicable, subject to customary confidentiality provisions and disclaimers);
coordinated reasonably in advance thereof at mutually agreed times; (iiiii) timely furnishing AbbVie and its Financing Sources with historical financial deliver documentation and other customary information (collectively, the “reasonably requested by sources of such Financing Information”) as promptly as reasonably practicable with respect to Allergan (x) applicable “know-your-customer”, FINCEN and anti-money laundering rules and regulations, including the PATRIOT Act and (y) the U.S. Treasury Department’s Office of Foreign Assets Control and the Foreign Corrupt Practices Act, in each case, to the extent such information is required pursuant to the applicable Financing; (iv) deliver as promptly as reasonably practicable all financial information and real property and other diligence materials related to the Company and its Subsidiaries as customary or reasonably necessary for the arrangement or completion of such Financing; (v) direct the Company’s independent auditors to cooperate with any Financing that is reasonably requested by AbbVie or its a securities offering consistent with their customary practice, including requesting the Company’s independent accountants to prepare and deliver customary comfort letters (it being understood that such customary comfort letters shall include a SAS 100 review of any interim financial statements and “negative assurance” comfort covering any “stub” period) if customary for such Financing, in connection with any Financing Sources and customarily required in Marketing Material for Financings of to the applicable typeunderwriters, including all Historical Financial Statements arrangers, initial purchasers or placement agents thereof in each case, on customary terms and other consistent with the customary practice of such independent accountants; (vi) assist with the preparation of pro forma financial information and pro forma financial statements solely with respect to Allergan and its Subsidiaries (A) the Company to the extent customary or reasonably necessary for the arrangement or completion of the Financing, including, if applicable, of the type that would be required by Regulation S-X and Regulation S-K promulgated under the Securities Act if for a public offering of securities of Parent and for Parent’s preparation of pro forma financial statements; (vii) assist in the Financing were incurred by AbbVie preparation of customary projections, estimates and registered on Form S-3 under other forward looking financial information regarding the Securities Act, including audit reports future performance of annual financial statements the Company to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), customary or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings the arrangement or completion of the applicable type;
Financing; and (iiiviii) providing to AbbVie’s the execution and delivery of such definitive financing documents, including certificates, credit agreements, note purchase agreements, securities purchase agreements, dealer manager agreements, solicitation agent agreements, authorization letters, guarantees, schedules, legal counsel and its independent auditors such customary documents opinions and other customary information relating to Allergan and its Subsidiaries documents, as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating necessary to the facilitate such Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with form and substance reasonably satisfactory to the terms of the definitive documents governing party executing such indebtedness (document; provided that any such notice or payoff letter documents referred to in this clause (viii) shall be expressly conditioned effective no earlier than the Effective Time (other than any authorization letters that are required to be given in advance of such time in order for the Financing to be consummated on or after the CompletionEffective Time);
(ix) procuring . The Company hereby consents to the reasonable use of all of Allergan’s its and its Subsidiaries’ logos in connection with the Financing (any Financing; provided that such logos are used solely in a manner that is not intended to and or is not reasonably likely to harm or disparage Allergan the Company or its Subsidiaries or the reputation or goodwill of Allergan such party or its Subsidiaries. Notwithstanding any other provision set forth herein or in any other agreement between Parent and the Company or its affiliates, the parties hereto agree that Parent may share with the arrangers and sources of such Financing customary projections and other confidential information with respect to the Company (including information about the Company’s Subsidiaries) after giving effect to the Merger and the transactions contemplated hereby that the parties have cooperated in preparing, and that Parent, its Subsidiaries and such arrangers and sources of Financing may share information about the Company and its Subsidiaries (notwithstanding anything to the contrary herein or in the Confidentiality Agreements) with potential sources of the Financing in connection with any marketing efforts in connection with the Financing, provided that the recipients of such information agree to customary confidentiality arrangements in form and substance reasonably acceptable to the Company.
(b) During the period from the date of this Agreement until the earlier to occur of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 7.1 (the “Interim Period”), Parent or one or more of its Subsidiaries may (i) commence any one or more of the following: (A) one or more offers to purchase (including any “change of control offer” under the Company Notes Indenture and/or the notes issued thereunder) any or all of the outstanding debt issued under the Company Notes Indenture for cash (collectively, the “Offers to Purchase”); and/or (B) one or more offers to exchange any or all of the outstanding debt issued under the Company Notes Indenture for securities issued by Parent or any of its affiliates (the “Offers to Exchange”); and/or (ii) solicit the consent of the holders of debt issued under the Company Notes Indenture regarding certain proposed amendments thereto (the “Consent Solicitations” and, together with the Offers to Purchase and Offers to Exchange, if any, the “Note Offers and Consent Solicitations”); provided that any such notice or offer shall expressly reflect that, and it shall be the case that, the closing of any such transaction shall not be consummated until the Effective Time. Any Note Offers and Consent Solicitations shall be made on such terms and conditions (including price to be paid and conditionality) as are proposed by Parent and which are permitted by the terms of the Company Notes Indenture and applicable Laws, including SEC rules and regulations. Parent shall consult with the Company regarding the material terms and conditions of any Note Offers and Consent Solicitations, including the timing and commencement of any Note Offers and Consent Solicitations and any tender deadlines. Parent shall have provided the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal, press release, if any, in connection therewith, and each other document relevant to the transaction that will be distributed by Parent in the applicable Note Offers and Consent Solicitations (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Note Offers and Consent Solicitations to allow the Company and its counsel to review and comment on such Debt Offer Documents, and Parent shall give reasonable and good faith consideration to any comments made or input provided with respect thereto by the Company and its legal counsel. Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations (including for the avoidance of doubt any other liability management transaction hereunder that includes a Consent Solicitation), the Company shall execute a supplemental indenture to the Company Notes Indenture in accordance with the terms thereof amending the terms and provisions thereof as described in the applicable Debt Offer Documents in a form as reasonably requested by Parent (the “Supplemental Indenture”); provided that the amendments effected by such supplemental indenture shall not become operative until the Effective Time. During the Interim Period, at Parent’s sole expense, the Company shall and shall cause its Subsidiaries to, and shall cause its and their Representatives to, provide all cooperation reasonably requested by Parent to assist Parent in connection with any Note Offers and Consent Solicitations (including using reasonable best efforts to direct the Company’s independent accountants to provide customary consents for use of their reports to the extent required in connection with any Note Offers and Consent Solicitations). The dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any Note Offers and Consent Solicitations will be selected and retained by Parent. If, at any time prior to the completion of the Note Offers and Consent Solicitations, the Company or any of its Subsidiaries); and, on the one hand, or Parent or any of its Subsidiaries, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall use reasonable best efforts to promptly notify the other party, and an appropriate amendment or supplement prepared by Parent describing such information shall be disseminated to the holders of the notes outstanding under the Company Notes Indenture.
(xc) providing at least three (3) Business Days in advance of Parent shall promptly, upon request by the Completion Date such documentation and other information about Allergan Company, reimburse the Company and its Subsidiaries as is reasonably requested in writing for all reasonable and documented out-of-pocket costs and expenses paid to third parties (including reasonable and documented advisor’s fees and expenses) incurred by AbbVie at least ten (10) Business Days in advance of the Completion Date Company and its Subsidiaries in connection with the Financing that relates cooperation provided pursuant to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a5.13 and indemnify and hold harmless the Company, its Subsidiaries and their respective officers, directors and other Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties (collectively, “Losses”) suffered or incurred by them in connection with any Financing, any information utilized in connection therewith or any action taken by the Company or any Subsidiary of the Company pursuant to this Section 7.9(b5.13, in each case, whether or not the Merger is consummated or this Agreement is terminated; provided, however, that the foregoing indemnity shall not apply with respect to any Losses resulting from any gross negligence or willful misconduct of the Company or its Subsidiaries or Representatives or a Willful Breach of the Company or any Subsidiary of the Company under this Agreement.
(d) belowNotwithstanding the requirements of Section 5.13(a), (A) none of Allergan neither the Company nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to 5.13 that (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) unreasonably interfere unreasonably with the business or operations of Allergan the Company or its Subsidiaries, (ii) would require the Company, its Subsidiaries or any Persons who are directors or officers of the Company or its Subsidiaries to pass resolutions or consents to approve or authorize the execution of any Financing or any Note Offers and Consent Solicitations or execute or deliver any certificate, document, instrument or agreement or agree to any change or modification of any existing certificate, document, instrument or agreement, in each case, that is effective prior to the Effective Time, or that would be effective if the Effective Time does not occur (other than (x) authorization letters contemplated by clause (viii) of Section 5.13(a) and (y) to the extent required to be executed or delivered prior to the Effective Time pursuant to Section 5.13(a)), (iii) would cause any representation or warranty in this Agreement to be breached by Allergan the Company or any of its Subsidiaries, (iv) would require the Company or any of its Subsidiaries (unless waived by AbbVie)to pay any commitment or other similar fee prior to the Effective Time or incur any other expense, liability or obligation in connection with any Financing or any Note Offers and Consent Solicitations prior to the Effective Time, or have any obligation of the Company or any of its Subsidiaries under any agreement, certificate, document or instrument be effective until the Effective Time, (iiiv) could reasonably be expected to cause any director, officer or employee or shareholder stockholder of Allergan the Company or any of its Subsidiaries to incur any personal liability liability, (vi) could reasonably be expected to conflict with the organizational documents of the Company or its Subsidiaries or any Laws, (ivvii) could reasonably be expected to result in a material violation or breach of, or a default (with or without notice, lapse of time, or both) under, any material Contract contract to which Allergan the Company or any of its Subsidiaries is a party, (viii) would require providing access to or disclosing information that would reasonably be expected to jeopardize any attorney-client privilege of the Organizational Documents Company or any of Allergan its Subsidiaries, (ix) would require delivering or causing to be delivered any opinion of counsel in connection with any Financing or any Note Offers and Consent Solicitations (other than to the extent required by Section 5.13(b) in connection with the entry into a Supplemental Indenture, an opinion of counsel if the trustee under the Company Notes Indenture requires an opinion of counsel to the Company) or (x) could reasonably be expected to cause the Company to fail to qualify as a REIT for federal income tax purposes (including by reason of potential payments under Section 5.13(c) from such action).
(e) Upon the request of Parent, the Company shall use reasonable best efforts to, and cause its Subsidiaries and each of its and its Subsidiaries’ respective officers and employees to, facilitate the payoff and termination of the Company Revolving Credit Agreement and, if any loans are outstanding under either Company Term Loan Credit Agreement immediately prior to Closing (and the obligations under such Company Term Loan Credit Agreement are not being assumed by Parent at Closing and such Company Term Loan Credit Agreement is not being amended or restated at Closing), each such Company Term Loan Credit Agreement, including obtaining customary payoff letters in connection therewith (the “Credit Agreement Payoff”); provided that any applicable Law. AbbVie such action described in this clause (e) shall cause all non-public or other confidential information provided not be required unless it can be and is conditioned on the occurrence of the Closing.
(f) For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 5.13 represent the sole obligation of the Company, its Subsidiaries and their respective Representatives with respect to cooperation in connection with the arrangement of any Financing to be obtained by or on behalf of Allergan Parent or any of its Subsidiaries with respect to the transactions contemplated by this Agreement and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with modify such obligations. Notwithstanding the Confidentiality Agreement; providedforegoing, that Allergan acknowledges it is expressly understood and agrees agreed that the confidentiality undertakings that will be obtained in connection with syndication of parties’ obligation to consummate the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel Merger and the Takeover Rules.transactions
Appears in 2 contracts
Sources: Merger Agreement (Spirit Realty Capital, Inc.), Merger Agreement (Realty Income Corp)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan The Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and each of them shall use its their reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, Representatives to use their reasonable best efforts, to provide customary cooperation, to AbbVie and its Subsidiaries such assistance as may be the extent reasonably requested by AbbVie Parent in writing that is customary writing, in connection with the arrangingoffering, obtaining and syndication arrangement, syndication, consummation, issuance or sale of any Debt Financing or Alternative Financing obtained in accordance with Section 5.13 (provided, that such requested cooperation does not unreasonably interfere with the ongoing operations of the FinancingCompany or any of its Affiliates), including including, to the extent so requested, using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect furnish promptly to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with Parent the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmationsInformation, and undertakings in connection with such other financial information regarding the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan Company and its Subsidiaries as is reasonably requested by AbbVie or Parent in connection with the Debt Financing;
(ii) assist Parent in its Financing Sources and customarily required in Marketing Material for Financings preparation of the applicable type, including all Historical Financial Statements and other customary pro forma financial information identified in clause (c) of paragraph 2 of Annex B of the Debt Commitment Letters with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable typeParent;
(iii) providing provide reasonable and customary assistance to AbbVie’s legal counsel Parent and its independent auditors such the Financing Parties in the preparation of (A) customary offering documents, offering memoranda, offering circulars, private placement memoranda, registration statements, prospectuses, syndication documents and other syndication materials, including information memoranda, lender and investor presentations, bank books and other marketing documents, and similar documents for any portion of the Debt Financing and (B) materials for rating agency presentations;
(iv) make senior management of the Company available, at reasonable times and locations and upon reasonable prior notice, to participate in meetings (including one-on-one conference or virtual calls with Financing Parties and potential Financing Parties), drafting sessions, presentations, road shows, rating agency presentations and due diligence sessions and other customary syndication activities, provided, at the Company’s option in consultation with Parent, any such meeting or communication may be conducted virtually by videoconference or other media;
(v) cause the Company’s independent registered accounting firm to provide customary assistance, including by using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary comfort letters (including “negative assurance” comfort, if customary and appropriate) in connection with any capital markets transaction comprising a part of the Debt Financing to the applicable Financing Parties and to participate in a reasonable number of due diligence sessions; provided, at the Company’s option, any such session may be conducted virtually by videoconference or other media, and including by using reasonable best efforts to provide customary representation letters to the extent required by such independent registered accounting firm in connection with the foregoing;
(vi) provide customary authorization letters authorizing the distribution of Company information relating to Allergan prospective lenders in connection with a syndicated bank financing;
(vii) assist in obtaining or updating corporate and its Subsidiaries facility credit ratings;
(viii) assist in the negotiation and preparation of any credit agreement, indenture, note, purchase agreement, underwriting agreement, guarantees and customary closing certificates, as may be reasonably requested by Parent, in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors each case as experts in any Marketing Material and registration statements and related government filings filed or used contemplated in connection with the Debt Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents make introductions of Parent to the reasonable use Company’s existing lenders and facilitate relevant coordination between Parent and such lenders;
(x) cooperate with internal and external counsel of all of Allergan’s logos Parent in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); andDebt Financing;
(xxi) providing deliver, at least three (3) Business Days prior to Closing, to the extent reasonably requested in advance of the Completion Date such writing at least nine Business Days prior to Closing, all documentation and other information about Allergan regarding the Company and its Subsidiaries as that any Financing Party reasonably determines is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything Patriot Act of 2001, and, to the contrary extent required by any Financing Party, a beneficial ownership certificate (substantially similar in this Section 7.9(aform and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association) in respect of any of the Company or Section 7.9(bany of its Subsidiaries that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation (31 C.F.R. § 1010.230);
(xii) belowat Parent’s written request, cooperate with and use reasonable best efforts to provide all reasonable assistance to Parent in connection with any steps Parent may determine are necessary or desirable to take to (A) obtain consent for the Change of Control under and as defined in the Company Credit Agreement arising from consummation of the transactions contemplated by this Agreement, including facilitating and participating in communications with lenders under the Company Credit Agreement in relation to a Change of Control amendment request substantially in the form attached to the Debt Commitment Letters; provided that any such documentation prepared by the Company, its Subsidiaries and Representatives in connection with the foregoing shall be reasonably acceptable to Parent, and/or (B) prepay some or all amounts outstanding under the Company Credit Agreement, including (1) using reasonable best efforts to prepare and submit customary notices in respect of any such prepayment provided that such prepayment shall be contingent upon the occurrence of the Closing unless otherwise agreed in writing by the Company, and (2) using reasonable best efforts to obtain from the Company Credit Agreement agent a customary payoff letter in respect of the Company Credit Agreement;
(xiii) at Parent’s written request, cooperate with and use reasonable best efforts to provide all reasonable assistance to Parent in connection with any amendments to (A) the Financing Agreement, dated as of February 21, 2012, between The Kansas City Southern Railway Company and the United States of America, represented by the Secretary of Transportation acting through the Administrator of the Federal Railroad Administration and (B) the Financing Agreement, dated as of June 28, 2005, between Texas Mexican Railway Company and the United States of America, represented by the Secretary of Transportation acting through Administrator of the Federal Railroad Administration;
(xiv) on the Closing Date but immediately following the Closing, at Parent’s request (which may be prior to the Closing Date), execute such documentation as is reasonably requested so that the Company can assume the Debt Commitment Letter in respect of the Company Credit Agreement (to the extent the debt commitments thereunder have not been terminated at Closing in accordance with their terms); and
(xv) consent to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor reasonably likely to, harm or disparage the Company or its Subsidiaries or the Company’s or its Subsidiaries’ reputation or goodwill.
(b) The foregoing notwithstanding, none of Allergan the Company nor any of its Subsidiaries Affiliates shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to 5.12 that would: (i) pay require the Company or its Subsidiaries or any commitment of their respective Affiliates or other fee any persons who are officers or incur any liability (other than third-party costs and expenses that are directors of such entities to be promptly reimbursed by AbbVie upon request by Allergan pursuant pass resolutions or consents to Section 7.9(c))approve or authorize the execution of the Debt Financing or enter into, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document document, instrument or instrument, agreement or agree to any change to or modification of any existing agreement, certificate, document document, instrument or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur agreement (except (x) to for the extent required authorization letters contemplated by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered5.12(a)(vi)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan the Company or any of its Subsidiaries (unless waived by AbbVie)Affiliates, (iii) require the Company or any of its Affiliates to (x) pay any commitment or other similar fee or (y) incur any other expense, liability or obligation which expense, liability or obligation is not reimbursed or indemnified hereunder in connection with the Debt Financing prior to the Closing, or (z) have any obligation of the Company or any of its Affiliates under any agreement, certificate, document or instrument be effective until the Closing, (iv) cause any director, officer or officer, employee or shareholder stockholder of Allergan the Company or any of its Subsidiaries Affiliates to incur any personal liability liability, (v) conflict with the Organizational Documents of the Company or any of its Affiliates or any Laws, (ivvi) reasonably be expected to result in a material violation or material breach of, or a default (with or without notice, lapse of time, or both) under, any material Contract to which Allergan the Company or any of its Subsidiaries Affiliates is a partyparty (other than the Change of Control under and as defined in the Company Credit Agreement resulting from the consummation of the Mergers), (vii) provide access to or disclose information that the Company or any of its Affiliates determines would jeopardize any attorney- client privilege or other applicable privilege or protection of the Company or any of its Affiliates, (viii) require the Company to prepare any financial statements or information (other than the Financing Information) that are not available to it and prepared in the ordinary course of its financial reporting practice, or (ix) require the Company to prepare or deliver any Excluded Information. Nothing contained in this Section 5.12 or otherwise shall require the Company or any of its Affiliates, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing. Parent shall, promptly on request by the Company, reimburse the Company or any of its Affiliates for all reasonable out-of-pocket costs incurred by them or their respective representatives in connection with such cooperation and shall indemnify and hold harmless the Company and its Affiliates and their respective representatives from and against any and all losses suffered or incurred by them in connection with the arrangement of the Debt Financing, any action taken by them at the request of Parent or its representatives pursuant to this Section 5.12 and any information used in connection therewith.
(c) The parties hereto acknowledge and agree that the provisions contained in this Section 5.12 represent the sole obligation of the Company and its Subsidiaries with respect to cooperation in connection with the arrangement of any financing (including the Debt Financing) to be obtained by Parent with respect to the transactions contemplated by this Agreement, and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or modify such obligations. In no event shall the receipt or availability of any funds or financing (including the Debt Financing) by Parent any of its Affiliates or any other financing or other transactions be a condition to any of Parent’s obligations under this Agreement. Notwithstanding anything to the contrary in this Agreement, the Organizational Documents Company’s breach of Allergan or its Subsidiaries or any applicable Law. AbbVie of the covenants required to be performed by it under this Section 5.12 shall not be considered in determining the satisfaction of the condition set forth in Section 6.3(b), unless such breach is the primary cause all of Parent being unable to obtain the proceeds of the Debt Financing at the Closing.
(d) All non-public or other otherwise confidential information provided by or on behalf of Allergan regarding the Company or any of its Subsidiaries Affiliates obtained by Parent or Representatives its representatives pursuant to this Section 7.9 to 5.12 shall be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges Parent shall be permitted to disclose such information to (i) the Financing Parties subject to their confidentiality obligations under the Debt Commitment Letters and agrees that the confidentiality undertakings that will be obtained definitive documentation evidencing the Debt Financing and (ii) otherwise to the extent necessary and consistent with customary practices in connection with syndication of the Debt Financing will be in a form subject to customary for use in confidentiality arrangements reasonably satisfactory to the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesCompany.
Appears in 2 contracts
Sources: Voting Trust Agreement (Canadian Pacific Railway LTD/Cn), Merger Agreement (Canadian Pacific Railway LTD/Cn)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Sellers shall use its commercially reasonable best efforts, efforts to take (and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its the Target Group Companies and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their commercially reasonable best efforts, efforts to provide to AbbVie and its Subsidiaries such assistance as may be take) all actions reasonably requested by AbbVie the Purchaser or its financing sources or that are customary, in writing that is customary each case, in connection with the arrangingPurchaser arranging debt financing in connection with the transactions contemplated hereby (collectively, obtaining and syndication including one or more debt facilities, loan agreements, high yield offerings or other incurrences of indebtedness, New Debt Actions), such debt to be arranged prior to, concurrently with or immediately following the FinancingClosing, including using reasonable best efforts with respect to:
: (i) participating cooperating with reasonable and customary due diligence by potential lenders, underwriters, initial purchasers or other financing sources, and counsel for any of the foregoing, which may include, subject to the terms and conditions in and this Agreement, a reasonable number of site visits at the Target Company Real Property upon reasonable notice during normal business hours, (ii) assisting the Purchaser with the due diligencepreparation of any materials for rating agency and investor presentations, syndication or bank information memoranda, confidential information memoranda, offering memoranda, private placement memoranda, registration statements, prospectuses, road show presentations, marketing materials and any other marketing of the Financinglender presentation materials, including using reasonable best efforts with respect provision of any information about the Target Group Companies for use in any such documentation, which is reasonably requested by the Purchaser or the Purchaser’s financing sources or which is deemed by the Purchaser’s financing sources to be necessary or advisable in order to market and consummate the New Debt Actions, (Aiii) the participation by members of management of Allergan with appropriate seniority participating in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions, sessions with prospective financing sources, initial purchasers, lenders or underwriters, and sessions with prospective lenders, investors and rating agencies, in each case at reasonable times and at locations reasonably acceptable locations, including participation by the senior management of the Target Group Companies, (iv) causing the Target Group Companies’ current and former independent auditors to Allergan provide reasonable and upon their customary assistance and cooperation, including (A) participating in a reasonable noticenumber of drafting sessions and accounting due diligence sessions, (B) assisting with AbbVie’s preparation provision of one or more comfort letters customarily provided in debt offerings pursuant to Rule 144A (including customary materials for registration statementsnegative assurance on interim financial statements and the period since the most recent balance sheet included in the offering materials), offering documentsand the Target Group Companies will provide customary representation letters to such accountants, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion providing consents or incorporation authorization for use of their reports in any SEC filing related filings required to be made by the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject Purchaser pursuant to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if or the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Exchange Act, including audit reports (v) facilitating as promptly as reasonably practicable the execution and delivery of annual financial statements to the extent so required (which audit reports shall not be subject any definitive finance agreements, purchase agreements, indentures, notes, guarantees, registration rights agreements, resolutions and/or any other documents related to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries proposed debt financing as may be reasonably requested in connection with their by the Purchaser, (vi) arranging for the preparation and timely delivery of any required legal opinions by counsel to the Target Group Companies, (vii) facilitating as promptly as reasonably practicable the pledging, preparation, execution and delivery of any customary negative assurance pledge and security documents, or other customary certificates, instruments, legal opinions and customary comfort letters relating or documents as may be reasonably requested by the Purchaser to facilitate the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents pledging of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used collateral in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
New Debt Actions, (viii) providing documents as promptly as reasonably requested by AbbVie practicable of documentation to the Purchaser or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of Purchaser’s financing sources all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as requested by the Purchaser that is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsregulations (including the PATRIOT Act), (ix) ensuring that any syndication efforts in connection with any proposed debt financing benefit from the Target Group Companies’ existing lending and investment banking relationships, (x) preparation and provision of the Required Information, (xi) assisting the Purchaser with the Purchaser’s preparation of pro forma financial statements customarily included in offering documents for high yield debt securities or other information memoranda for syndicated bank financing, (xii) cooperating with the marketing efforts of the Purchaser and its financing sources for any portion of a proposed debt financing, (xiii) in the case of any proposed debt financing (or in connection with the Purchaser’s current debt financing) that includes an asset-based loan facility, providing reasonable access (subject to confidentiality arrangements reasonably acceptable to the Sellers) to the Purchaser’s financing sources and their representatives to evaluate the Target Group Companies’ inventory, current assets, cash management and accounting systems, and policies and procedures relating thereto for the purpose of establishing collateral arrangements (including without limitationallowing access for field exams), (xv) assisting with the pay-off of existing indebtedness of the Target Group Companies and the release of related liens and guaranties on the Closing Date (including obtaining customary pay-off letters, lien terminations and other instruments of discharge), and (xvi) updating any Required Information provided to the Purchaser or its financing sources as may be necessary for such Required Information to remain Compliant; provided, however, that notwithstanding anything in this Agreement, (x) neither the Sellers nor any of the Target Group Companies shall (A) have, prior to the Closing, any liability or obligation under any documents associated with the Purchaser’s financing (collectively, the USA PATRIOT ACTDebt Financing Documents), (B) be required to incur any other liability in connection with Purchaser’s financing or (C) be required to take any action that would require any director, manager, officer or employee of the Target Group Companies to execute, prior to Closing, any document, agreement, certificate or instrument or agree to any change or modification of any document, agreement, certificate or instrument prior to the Closing (other than such documents, agreements, certificates or instruments the effectiveness of which is conditioned upon and will not take effect prior to the Closing) or (D) be required take any action or provide any assistance that unreasonably interferes with the ongoing operations of the Sellers or any of the Target Group Companies and (y) the board of directors, or similar governing body, of the Target Group Companies shall not be required, prior to the Closing, to adopt resolutions approving the agreements, documents and instruments pursuant to which the Purchaser’s financing is obtained (other than resolutions the effectiveness of which is conditioned upon and will not take effect prior to the Closing).
(b) The Purchaser shall indemnify and hold harmless the Sellers and the Target Group Companies, and each of their respective Representatives, from and against any and all liabilities suffered or incurred in connection with the Purchaser’s financing or any assistance or activities provided in connection therewith, other than liabilities that are the result of the gross negligence or willful misconduct of or material breach of the representations, warranties, covenants or other agreements contained in this Agreement by the Sellers or any Target Group Company as finally determined by a court of competent jurisdiction. The Purchaser shall promptly reimburse the Sellers and the Target Group Companies for all reasonable and documented out-of-pocket costs (including reasonable attorney’s fees) incurred by the Sellers, the Target Group Companies and each of their respective Representatives in connection with the cooperation by the Sellers and the Target Group Companies, or their respective Representatives, pursuant to this Section 6.05 or in connection with its compliance with its obligations under this Section 6.05. Notwithstanding anything herein to the contrary in this Section 7.9(a) or Section 7.9(b) belowcontrary, (A) none of Allergan nor any of its Subsidiaries the Sellers or the Target Group Companies shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other similar fee or enter into any definitive agreement (other than such definitive agreement to which a Target Group Company (but no Seller) is a party and the effectiveness of which is conditioned upon and will not take effect prior to the Closing) or incur any other liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, obligation in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing Purchaser’s financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none occurrence of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesClosing Date.
Appears in 2 contracts
Sources: Unit Purchase Agreement, Unit Purchase Agreement (KLX Energy Services Holdings, Inc.)
Financing Cooperation. (a) Until Prior to the earlier of Effective Time, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best effortssubsidiaries to, at Parent’s sole expense, cooperate, and shall use its reasonable best efforts to cause its and their respective officers, employees employees, representatives, auditors, and advisors and other Representativesadvisors, including legal and accounting advisors, to use their reasonable best effortscooperate, to provide to AbbVie and its Subsidiaries such assistance in connection with the arrangement of the Debt Financing, as may be reasonably requested by AbbVie in writing Parent (provided that is customary in connection such requested cooperation does not unreasonably interfere with the arranging, obtaining and syndication ongoing operations of business of the FinancingCompany and its subsidiaries), including using reasonable best efforts with respect to:
including: (i) participating participation in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, rating agency presentations, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmationssessions, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to “road show” and other customary confidentiality provisions and disclaimers);
marketing presentations; (ii) timely furnishing AbbVie in writing any financing sources as promptly as practicable with pertinent information regarding the Company and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery the Debt Financing; (iii) assisting any financing sources in the preparation of (A) one or more customary offering documents, information memoranda and/or documents to be filed with the SEC in connection with the Debt Financing and (B) materials for rating agency presentations; (iv) executing and delivering any pledge and security documents and otherwise facilitating the pledging of collateral; (v) taking all reasonably required corporate actions, subject to the consummation of the Mergers, to permit the consummation of the Debt Financing; (vi) providing authorization letters to any financing sources authorizing the distribution of information to prospective lenders and containing customary representation to the arranger of any customary negative assurance opinions and customary comfort letters financing that the information contained in any offering document or information memorandum relating to the Financing;Company and its subsidiaries does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (vii) cooperating reasonably with the financing sources; due diligence of the Company and its subsidiaries, to the extent customary and reasonable. Parent shall, promptly upon termination of this Agreement, reimburse the Company for all reasonable out-of-pocket expenses and costs incurred in connection with the Company’s or its Affiliates’ obligations under this Section 7.11.
(ivb) causing Allergan’s In addition, prior to the Effective Time, the Company shall: (i) use its reasonable best efforts to cause Ernst & Young LLP, independent auditors accountants of the Company, to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration a letter or letters containing statements and related government filings filed or information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to financial statements and certain financial information used in connection with the Debt Financing;
; (viii) obtaining Allergan’s independent auditors’ use its reasonable best efforts to provide customary comfort representation letters and assistance with other authorizations or information to Ernst & Young LLP, to enable them to provide the accounting due diligence activities foregoing “comfort letters”; (iii) use its reasonable best efforts to obtain the consent of Ernst & Young LLP for the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any inclusion of its Subsidiaries reports on the Company in any document or documents to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos used in connection with the Financing Debt Financing; and (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or iv) cause the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance appropriate representatives of the Completion Date such documentation Company to execute and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document certificates or instrument, or agree to any change to or modification documents as may be reasonably requested by Parent for delivery at the consummation of any existing agreement, certificate, document or instrument, the Debt Financing.
(c) Notwithstanding anything in each case that would be effective prior this Agreement to the Completion Date or would be effective if contrary, neither the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or Company nor any of its Subsidiaries reasonably determines would jeopardize subsidiaries shall be required to pay any attorney-client privilege commitment or other similar fee or enter into any definitive agreement or incur any other liability of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, obligation in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan Debt Financing (or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (vany alternative financing) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesEffective Time.
Appears in 2 contracts
Sources: Merger Agreement (Consolidated Communications Holdings, Inc.), Merger Agreement (Surewest Communications)
Financing Cooperation. (a) Until Prior to the earlier of Closing, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Company shall use its commercially reasonable best effortsefforts to cooperate, and shall cause each of its the Company Subsidiaries to use its commercially reasonable best effortsefforts to cooperate, and shall use its commercially reasonable best efforts to cause its and their respective officersRepresentatives, employees to provide, on a timely basis, all reasonable cooperation requested by Parent in connection with the documentation and advisors arrangement of any debt financing, including repurchase agreements (the “Debt Financing”), including (i) providing customary financial and other Representativespertinent information regarding the Company and the Company Subsidiaries, including legal the financial information required to be delivered in connection with the Debt Financing and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance other information as may be reasonably requested by AbbVie in writing that is customary Parent in connection with the arranging, obtaining and syndication of the Debt Financing, (ii) assisting in the preparation of customary documents and materials, including using reasonable best efforts confidential information memoranda, lender and investor presentations and similar documents and materials in connection with respect to:
the Debt Financing, (iiii) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable noticepresentations, (Biv) assisting with AbbVie’s providing reasonable and customary assistance to Parent and its Financing Sources in (A) the preparation of all credit agreements (including review of schedules for completeness), currency or interest hedging agreements or other agreements, and reasonably requested customary materials for registration statementscertificates, offering opinions or documents, private placement memorandaincluding customary certificates with respect to solvency matters, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Debt Financing and (collectivelyB) the negotiation, “Marketing Material”) preparation and due diligence sessions related thereto, (C) delivering and consenting delivery of amendments to or the inclusion or incorporation in termination of any SEC filing related to the Financing of the historical audited consolidated financial statements Company’s or the Company Subsidiaries’ existing credit agreements, currency or interest hedging agreements, or other agreements, including repurchase agreements and unaudited consolidated interim financial statements related documentation in respect of Allergan included the Company’s or incorporated the Company Subsidiaries’ borrowings collateralized by reference into residential mortgage backed securities, securitized mortgage loans, other mortgage and mortgage related assets or other investment securities (including by negotiating amendments, waivers or supplements reasonably satisfactory to Parent with respect to any and all obligations of the Allergan SEC Documents (Company and the “Historical Financial Statements”) Company Subsidiaries under such repurchase agreements and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings related documentation which are intended by Parent to be terminated in connection with the Marketing Material (consummation of the Transactions), in each case, as applicable, subject on terms reasonably satisfactory to customary confidentiality provisions Parent and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is that are reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used Parent in connection with the Debt Financing;
, (v) permitting any cash and marketable securities of the Company and the Company Subsidiaries to be made available to Parent and Merger Sub following the First Merger Effective Time, (vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance cooperating reasonably with the accounting due diligence activities of the Financing Sources;
’ due diligence, to the extent customary and reasonable and (vii) causing the Financing to benefit from the existing lender relationships of Allergan furnishing Parent and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance promptly with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of any Governmental Entity with respect to the Completion Date in connection with the Financing that relates to financing under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, Act; provided that (A) none no obligation of Allergan nor the Company or any of its the Company Subsidiaries under any such agreements, amendments. authorizations, resolutions, consents shall be required to take or permit effective until the taking actual occurrence of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability the First Merger Effective Time (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change amendments to or modification the termination of any of the Company’s or the Company Subsidiaries’ existing agreementrepurchase agreements and related documentation in respect of the Company’s or the Company Subsidiaries’ borrowings collateralized by residential mortgage backed securities, certificatesecuritized mortgage loans, document other mortgage and mortgage related assets or instrument, in each case that would other investment securities which shall be effective prior to the Completion Date or would be effective if the Completion does not occur (except (xClosing) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, Company or directors and officers any of the Company Subsidiaries of Allergan or their respective Representatives shall be required to adopt resolutions pay any commitment or consents approving other similar fee or incur any other cost or expense that is not promptly reimbursed by Parent in connection with the agreements, documents or instruments pursuant Debt Financing prior to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), First Merger Effective Time and (C) neither Allergan nor any no member of its Subsidiaries the Company Board shall be required to take or permit any action with respect to the taking Debt Financing and neither the Company nor any of the Company Subsidiaries shall be obligated to take any action that would (i) interfere unreasonably with requires action or approval by the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement Company Board prior to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable LawFirst Merger Effective Time. AbbVie shall cause all All non-public or other confidential information provided by or on behalf of Allergan the Company or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to 6.16 shall be kept confidential in accordance with the Confidentiality Agreement; provided, except that Allergan acknowledges and agrees that the Parent shall be permitted to disclose such information to potential Financing Sources subject to customary confidentiality undertakings that will be obtained by such potential Financing Sources.
(b) Parent shall (A) promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ fees) incurred by the Company or any of the Company Subsidiaries in connection with syndication the cooperation of the Company and the Company Subsidiaries contemplated by this Section 6.16 and Section 6.17 and (B) indemnify and hold harmless the Company, the Company Subsidiaries and their respective Representatives (collectively, the “Cooperation Indemnitees”) from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with third party claims arising out of the arrangement of the Debt Financing will be or any of the actions or steps referred to in a form customary for use Section 6.17, and any information used in connection therewith, except with respect to any information provided in writing by the Company or any of the Company Subsidiaries or contained in the syndication of acquisition-related debt during Company SEC Documents or to the extent suffered or incurred as a takeover offer period in compliance with the requirements result of the Panel and gross negligence, willful misconduct or bad faith of the Takeover RulesCooperation Indemnitees.
Appears in 2 contracts
Sources: Merger Agreement (Apollo Residential Mortgage, Inc.), Merger Agreement (Apollo Commercial Real Estate Finance, Inc.)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries The Company agrees to use its reasonable best efforts, and shall use its reasonable best efforts to provide such assistance (and to cause its Subsidiaries and its and their respective officerspersonnel, employees representatives and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide such assistance) with the Debt Financing and marketing efforts to AbbVie current and its Subsidiaries such assistance prospective equity investors as may be is reasonably requested by AbbVie in writing Industrea that is customary and in connection with the arranging, obtaining arrangement and syndication consummation of the FinancingDebt Financing and the reduction or minimization of redemptions of Industrea Common Stock, including using reasonable best efforts with respect to:
as applicable. Such assistance shall include, without limitation, the following: (i) participating in and assisting with the due diligenceas promptly as reasonably practicable, syndication or other marketing of the Financingfurnishing Industrea, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie its Affiliates and its Financing Sources with historical financial and other customary pertinent information (collectively, regarding the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan Company and its Subsidiaries as may be reasonably requested by Industrea and specifically identified in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
Debt Commitment Letters, (ivii) causing Allergan’s independent auditors to provide customary cooperation reasonably assisting with the Financing;
(v) obtaining the consents preparation of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan lender and to references to such independent auditors as experts in any Marketing Material investor presentations, rating agency presentations, and registration statements similar documents and related government filings filed or used materials, in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters Debt Financing and assistance otherwise reasonably cooperating with the accounting marketing efforts of Industrea and Financing Sources for any portion of the Debt Financing, as applicable, including providing the business description to be contained therein and providing and executing customary authorization letters with respect thereto (it being understood and agreed that such documents shall contain customary language exculpating the Company and the Industrea Parties with respect to any liability related to the use of the contents thereof or any related marketing material by the recipients thereof), (iii) participating in a reasonable number of meetings, drafting sessions, due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan meetings and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date presentations with prospective lenders and/or equity investors, and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtednesssessions with ratings agencies, in each case upon reasonable notice and at mutually agreeable dates and times (including a reasonable number of customary one-on-one meetings), (iv) delivering to Industrea the payoff letters contemplated by Section 3.2(d)(iii) and the Lien releases contemplated by Section 3.2(d)(xiii), (v) preparing and furnishing to Industrea and the lenders as promptly as practicable all Required Financial Information, (vi) delivering to Industrea, within the time periods specified in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of Debt Commitment Letters all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan relating to the Company and its Subsidiaries as is reasonably requested in writing Affiliates required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, to the extent such documentation and other information is requested by the lenders within the time periods specified in the Debt Commitment Letters, (vii) cooperating with the Financing Sources’ reasonable due diligence investigation and evaluation of the assets and properties of the Company and its Subsidiaries for the purpose of establishing collateral arrangements and otherwise reasonably facilitating the pledging of collateral (it being understood that no such pledging of collateral will be effective until at or after the Closing) (including obtaining for delivery at or immediately following the Closing the certificates representing equity interests constituting collateral) and (viii) executing and delivering as of (but not before) the Closing definitive financing documents (which will not be effective before the Closing), including credit agreements, intercreditor agreements, guarantee agreements, pledge and security documents (including intellectual property filings with respect to intellectual property constituting collateral) or documents (including a solvency certificate executed by the chief financial officer of the Company in the form attached to the Debt Commitment Letters and any customary backup officer’s certificate required for a legal opinion), to the extent reasonably requested by the Industrea Parties and otherwise using commercially reasonable efforts to facilitate the granting or perfection of collateral to secure any portion of the financings contemplated by the Debt Commitment Letters (or any permitted replacement thereof), including obtaining for delivery at or immediately following the Closing any certificates representing equity interests constituting collateral. Such assistance shall not require the Company or any of its Affiliates to agree to any contractual obligation relating to the Debt Financing that is not conditioned upon the Closing and that does not terminate without limitationliability to the Company or any of its Affiliates upon the termination of this Agreement. The Company will, upon reasonable written request of Industrea, use its reasonable best efforts to update any Required Financial Information (to the extent it is available) to be included in any offering document to be used in connection with the Debt Financing to assist Industrea in ensuring that such Required Financial Information, when taken as a whole, does not contain as of the time provided, giving effect to any supplements, any untrue statement of material fact or omit to state any material fact necessary in order to make the statements contained therein not materially misleading.
(b) The Company shall take all commercially reasonable actions necessary to issue, upon a timely request by Industrea, in accordance with the terms and conditions of the Existing Notes and the Existing Notes Indentures, a notice of redemption to redeem the aggregate principal amount of each series of Existing Notes outstanding as of the Closing Date pursuant to Section 3.07 of each Existing Notes Indenture (the “Existing Notes Redemptions”), and the Company shall take all commercially reasonable actions necessary to cause the Existing Notes Redemptions to occur substantially simultaneously with the Closing.
(c) In each case of this Section 6.4, the USA PATRIOT ACTCompany’s cooperation shall be at Industrea’s written request with reasonable prior notice and at Industrea’s sole cost and expense. Notwithstanding anything The Company shall not be required to deliver or cause the delivery of any legal opinions or accountants’ comfort letters or reliance letters in connection with the Debt Financing. The Company will consent to the contrary use of all of its and its Subsidiaries’ logos in this connection with the Debt Financing; provided, that such logos are used solely in a manner that is not reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries. Without limiting the Company’s representations and warranties set forth in Section 7.9(a) or Section 7.9(b) below4.8, (A) none of Allergan the Company nor any of its Subsidiaries nor any of their respective Affiliates and their respective representatives shall be required have any liability to take any Industrea Parties or permit the taking their respective Affiliates in respect of any action financial statements, other financial documents or data or other information provided pursuant to this Section 7.9(a6.4 actual (not constructive) fraud by the Company or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed its Subsidiary. All information provided by AbbVie upon request by Allergan pursuant to Section 7.9(c))the Company, (ii) execute or deliver any definitive financing documents or any other agreementits Subsidiaries, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Holder Representative or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan their respective Affiliates or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives representatives pursuant to this Section 7.9 to 6.4 shall be kept confidential in accordance with the Confidentiality Agreement; providedAgreement except that Industrea shall be permitted to disclose on a confidential basis such information to the Financing Sources, that Allergan acknowledges rating agencies and agrees that the confidentiality undertakings that will be obtained prospective lenders in connection with syndication the Debt Financing. Each of the Financing will Industrea Parties agrees and acknowledges that the Company shall not be considered to have breached this Section 6.4 unless the Company shall have knowingly, intentionally and materially breached this Section 6.4 and which breach shall have caused the Closing not to occur. Industrea shall indemnify and hold harmless the Company and its Subsidiaries and their respective directors, officers, employees and agents from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance connection with the requirements Debt Financing and the Equity Financing or any assistance or activities provided in connection therewith, except to the extent suffered or incurred as a result of the Panel knowing, intentional and material breach of this Section 6.4 or the Takeover Rulesactual (not constructive) fraud of, any of them.
Appears in 2 contracts
Sources: Merger Agreement (Industrea Acquisition Corp.), Merger Agreement
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan The Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and each of them shall use its their reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, Representatives to use their reasonable best efforts, to provide customary cooperation, to AbbVie the extent reasonably requested by Parent in writing, in connection with the offering, arrangement, syndication, consummation, issuance or sale of any debt financing required to fund the Financing Amounts (the “Debt Financing”) (provided, that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company or any of its Subsidiaries), including, to the extent so requested, using reasonable best efforts to:
(i) furnish promptly to Parent the Financing Information;
(ii) assist Parent in its preparation of pro forma financial statements and pro forma information to the extent necessary or reasonably requested by Parent in connection with any Debt Financing;
(iii) provide reasonable and customary assistance to Parent in the preparation of (A) customary offering documents, offering memoranda, offering circulars, private placement memoranda, registration statements, prospectuses, syndication documents and other syndication materials, including information memoranda, lender and investor presentations, bank books and other marketing documents, and similar documents for any portion of the Debt Financing and (B) materials for rating agency presentations which, in each case, as is customary and appropriate, may incorporate by reference periodic and current reports filed by the Company with the SEC;
(iv) make senior management of the Company and its Subsidiaries available, at reasonable times and locations and upon reasonable prior notice, to participate in meetings (including one-on-one conference or virtual calls with Financing Parties and potential Financing Parties), drafting sessions, presentations, road shows, rating agency presentations and due diligence sessions and other customary syndication activities, provided, at the Company’s option in consultation with Parent, any such assistance meeting or communication may be conducted virtually by videoconference or other media;
(v) cause the Company’s independent registered accounting firm to provide customary assistance, including by using reasonable best efforts to cause the Company’s independent registered accounting firm (A) to provide customary comfort letters (including “negative assurance” comfort), in each case in customary form in connection with any capital markets transaction comprising a part of the Debt Financing, including at the time of pricing and closing, to the applicable Financing Parties, (B) if required, provide consents with respect to financial statements for the Company and its Subsidiaries for inclusion or incorporation by reference in documents referred to in clause (iii) of this Section 5.12(a) and (C) participate in a reasonable number of due diligence and drafting sessions; provided, at the Company’s option, any such session may be conducted virtually by videoconference or other media, and including by using reasonable best efforts to provide customary representation letters to the extent required by such independent registered accounting firm in connection with the foregoing;
(vi) provide customary authorization letters authorizing the distribution of Company information to prospective lenders in connection with any syndicated bank financing;
(vii) assist in obtaining or updating corporate and facility credit ratings;
(viii) assist in the negotiation, preparation and, substantially concurrently with, conditioned upon, and effective subject to the occurrence of, the Closing, execution of any credit agreement, indenture, note, purchase agreement, underwriting agreement, guarantees and customary closing certificates, as may be reasonably requested by AbbVie Parent, in writing that is customary each case as contemplated in connection with the arranging, obtaining and syndication of the Debt Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents cooperate with internal and external counsel of Parent in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to the reasonable use of all of Allergan’s logos deliver in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); andDebt Financing;
(x) cooperate with the due diligence requests of Parent and providing at least three access to documents and other information in connection with customary due diligence investigations;
(3xi) Business Days deliver, prior to Closing, to the extent reasonably requested in writing in advance of the Completion Date such thereof, all documentation and other information about Allergan regarding the Company and its Subsidiaries as that any Financing Party reasonably determines is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything Act of 2001, and, to the contrary extent required by any Financing Party, a beneficial ownership certificate (substantially similar in this Section 7.9(aform and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association) in respect of any of the Company or Section 7.9(bany of its Subsidiaries that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation (31 C.F.R. § 1010.230);
(xii) belowat Parent’s written request, cooperate with and use reasonable best efforts to provide all reasonable assistance to Parent with respect to (A) the prepayment of some or all amounts outstanding under the Company Existing Indebtedness, including (x) using reasonable best efforts to prepare and submit customary notices in respect of any such prepayment provided that such prepayment shall be contingent upon the occurrence of the Closing, and (y) using reasonable best efforts to obtain from the lenders or agents, as applicable, under the Company Existing Indebtedness customary payoff letters in respect of such Company Existing Indebtedness and (B) the matters set forth on Section 5.12(a)(xii) of the Company Disclosure Schedules;
(xiii) consent to the use of the Company’s and its Subsidiaries’ logos in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor reasonably likely to, harm or disparage the Company or its Subsidiaries or the Company’s or its Subsidiaries’ reputation or goodwill; and
(xiv) cause the Company and its Subsidiaries to facilitate the taking of all reasonable and customary corporate action, limited liability company action or other organizational action, as applicable, none of Allergan which shall become effective prior to the Closing, necessary to permit and/or authorize the consummation of the Debt Financing.
(b) The foregoing notwithstanding, none of the Company nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to 5.12 that would: (i) pay require the Company or its Subsidiaries or any commitment persons who are officers or other fee directors of such entities to pass resolutions or incur any liability (other than third-party costs and expenses that are consents to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))approve or authorize the execution of the Debt Financing or enter into, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document document, instrument or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur agreement (except for the authorization letters contemplated by Section 5.12(a)(vi)) unless (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and are to remain as directors and/or officers of the Company or the applicable Subsidiaries of Allergan shall be required to adopt resolutions or consents approving on and after the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), Closing Date and (C2) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with effectiveness thereof is contingent upon and effective after the business or operations of Allergan or its SubsidiariesClosing, (ii) cause any representation or warranty in this Agreement to be breached by Allergan the Company or any of its Subsidiaries, (iii) require the Company or any of its Subsidiaries to (unless waived by AbbVie)x) pay any commitment or other similar fee prior to the Closing, (iiiy) incur any other expense, liability or obligation which expense, liability or obligation is not reimbursed or indemnified hereunder in connection with the Debt Financing prior to the Closing or (z) have any obligation of the Company or any of its Subsidiaries under any agreement, certificate, document or instrument be effective until the Closing, (iv) cause any director, officer or officer, employee or shareholder of Allergan the Company or any of its Subsidiaries to incur any personal liability liability, (v) conflict with the Organizational Documents of the Company or any of its Subsidiaries or any applicable Laws, (ivvi) reasonably be expected to result in a material violation or material breach of, or a default (with or without notice, lapse of time, or both) under, any material Contract to which Allergan the Company or any of its Subsidiaries is a party, (vii) provide access to or disclose information that the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan Company or any of its Subsidiaries determines would jeopardize any attorney-client privilege or other applicable privilege or protection of the Company or any of its Subsidiaries, (viii) require the Company to prepare any financial statements or information (other than the Financing Information) that are not available to it and prepared in the ordinary course of its financial reporting practice, or (ix) require the Company to prepare or deliver any Excluded Information. Nothing contained in this Section 5.12 or otherwise shall require the Company or any of its Subsidiaries, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing. Parent shall, promptly on request by the Company, reimburse the Company or any of its Subsidiaries for all reasonable and documented out-of-pocket costs incurred by them or their respective Representatives in connection with such cooperation and shall indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives from and against any and all losses suffered or incurred by them in connection with the arrangement of the Debt Financing, any action taken by them at the request of Parent or its representatives pursuant to this Section 5.12 and any information used in connection therewith, other than to the extent any such costs or losses are the result of the gross negligence, bad faith or willful misconduct of the Company, its Subsidiaries or their respective Representatives.
(c) The parties hereto acknowledge and agree that the provisions contained in this Section 5.12 represent the sole obligation of the Company and its Subsidiaries with respect to cooperation in connection with the offering, arrangement, syndication, consummation, issuance or sale of any Debt Financing to be obtained by Parent with respect to the transactions contemplated by this Agreement, and no other provision of this Agreement (including the exhibits and schedules hereto) shall be deemed to expand or modify such obligations. In no event shall the receipt or availability of any funds or financing (including the Debt Financing) by Parent or any of its Affiliates or any other financing or other transactions be a condition to any of Parent’s obligations under this Agreement. Notwithstanding anything to the contrary contained in this Agreement, the Company’s breach of any of the covenants required to be performed by it under this Section 5.12 shall not be considered in determining the satisfaction of the condition set forth in Section 6.3(b), unless such breach is the primary cause of Parent being unable to obtain the proceeds of the Debt Financing at the Closing.
(d) All non-public or otherwise confidential information regarding the Company or any of its Affiliates obtained by Parent or its Representatives pursuant to this Section 7.9 to 5.12 shall be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges Parent shall be permitted to disclose such information to (i) prospective lenders and agrees investors during syndication and marketing of the Debt Financing that the agree to confidentiality undertakings that will customary for financing transactions of investment grade borrowers (including customary “click-through” confidentiality undertakings and confidentiality provisions contained in customary confidential information memoranda or other offering memoranda), (ii) on a confidential basis to rating agencies, (iii) in the case of any part of the Debt Financing consisting of debt securities, to the extent required to be obtained included in any prospectus, private placement memorandum or other similar offering document in connection with syndication of the Debt Financing will be and (v) otherwise to the extent necessary and consistent with customary practices in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance connection with the requirements of Debt Financing subject to customary confidentiality arrangements reasonably satisfactory to the Panel and the Takeover RulesCompany.
Appears in 2 contracts
Sources: Merger Agreement (Union Pacific Corp), Merger Agreement (Norfolk Southern Corp)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan The Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and each of them shall use its their reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, Representatives to use their reasonable best efforts, to provide customary cooperation, to AbbVie and its Subsidiaries such assistance as may be the extent reasonably requested by AbbVie Parent in writing that is customary writing, in connection with the arrangingoffering, obtaining and syndication arrangement, syndication, consummation, issuance or sale of any Debt Financing or Alternative Financing obtained in accordance with Section 7.16 (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the FinancingCompany or any of its Affiliates), including including, to the extent so requested, using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect furnish promptly to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with Parent the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmationsInformation, and undertakings in connection with such other financial information regarding the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan Company and its Subsidiaries as is reasonably requested by AbbVie or its Parent in connection with the Debt Financing;
(ii) provide reasonable and customary assistance to Parent and the Financing Sources and customarily required Parties in Marketing Material for Financings the preparation of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) customary offering documents, offering memoranda, offering circulars, private placement memoranda, registration statements, prospectuses, syndication documents and other syndication materials, including information memoranda, lender and investor presentations, bank books and other marketing documents, and similar documents for any portion of the type that would be required by Regulation S-X Debt Financing and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary materials for Financings of the applicable typerating agency presentations;
(iii) providing make senior management of the Company available, at reasonable times and locations and upon reasonable prior notice, to AbbVie’s legal counsel participate in meetings (including one-on-one conferences or virtual calls with Financing Parties and its independent auditors such customary documents potential Financing Parties), drafting sessions, presentations, road shows, rating agency presentations and due diligence sessions and other customary syndication activities; provided, at the Company’s option in consultation with Parent, any such meeting or communication may be conducted virtually by videoconference or other media;
(iv) cause the Company’s independent registered accounting firm to provide customary assistance, including by using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary comfort letters (including “negative assurance” comfort, if customary and appropriate) in connection with any capital markets transaction comprising a part of the Debt Financing, including at the time of pricing and closing, to the applicable Financing Parties and to participate in a reasonable number of due diligence sessions; provided, at the Company’s option, any such session may be conducted virtually by videoconference or other media, and including by using reasonable best efforts to provide customary representation letters to the extent required by such independent registered accounting firm in connection with the foregoing;
(v) provide customary authorization letters authorizing the distribution of Company information relating to Allergan prospective lenders in connection with a syndicated bank financing;
(vi) assist in obtaining or updating corporate and its Subsidiaries facility credit ratings;
(vii) assist in the negotiation and preparation of any credit agreement, indenture, note, purchase agreement, underwriting agreement, and such other customary closing certificates and schedules as may be reasonably requested by Parent, in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors each case as experts in any Marketing Material and registration statements and related government filings filed or used contemplated in connection with the Debt Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating make introductions of Parent to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date Company’s existing lenders and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters facilitate relevant coordination between Parent and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion)lenders;
(ix) procuring consents cooperate with internal and external counsel of Parent in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to the reasonable use of all of Allergan’s logos deliver in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); andDebt Financing;
(x) providing deliver, at least three (3) Business Days in advance of prior to Closing, to the Completion Date such documentation and other information about Allergan and its Subsidiaries as is extent reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of prior to Closing, all documentation and other information regarding the Completion Date in connection with the Company and its Subsidiaries that any Financing that relates to Party reasonably determines is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything Act of 2001, and, to the contrary extent required by any Financing Party, a beneficial ownership certificate (substantially similar in this Section 7.9(aform and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association) in respect of any of the Company or Section 7.9(bany of its Subsidiaries that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation (31 C.F.R. § 1010.230); and
(xi) belowconsent to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor reasonably likely to, harm or disparage the Company or its Subsidiaries or the Company’s or its Subsidiaries’ reputation or goodwill.
(Ab) The foregoing notwithstanding, none of Allergan the Company nor any of its Subsidiaries Affiliates shall be required to take or permit the taking of any action pursuant to Section 7.14 or this Section 7.9(a) or Section 7.9(b) below to 7.15 that would: (i) pay require the Company or its Subsidiaries or any commitment of their respective Affiliates or other fee any persons who are officers or incur any liability directors of such entities to pass resolutions or consents to approve or authorize the execution of the Debt Financing (other than third-party costs and expenses that are resolutions or consents to be promptly reimbursed by AbbVie upon request by Allergan pursuant approve or authorize entry into any supplemental indenture necessary to Section 7.9(c))consummate the Debt Offer) or enter into, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document document, instrument or instrument, agreement or agree to any change to or modification of any existing agreement, certificate, document document, instrument or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur agreement (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or other than any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, supplemental indenture entered into in connection with any Debt Offer) notices of prepayment or redemption that are conditioned on Closing in accordance with Section 7.14, and the entry into an Allergan Supplemental Indenture required authorization letters contemplated by Section 7.9(b7.15(a)(v), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, ; (ii) cause any representation or warranty in this Agreement to be breached by Allergan the Company or any of its Subsidiaries Affiliates; (unless waived by AbbVie)iii) require the Company or any of its Affiliates to (x) pay any commitment or other similar fee, (iiiy) incur any other expense, liability or obligation which expense, liability or obligation is not reimbursed or indemnified hereunder in connection with the Debt Financing prior to the Closing or (z) have any obligation of the Company or any of its Affiliates under any agreement, certificate, document or instrument be effective until the Closing; (iv) cause any director, officer or officer, employee or shareholder stockholder of Allergan the Company or any of its Subsidiaries Affiliates to incur any personal liability liability; (v) conflict with the Organizational Documents of the Company or any of its Affiliates or any Laws; (ivvi) reasonably be expected to result in a material violation or material breach of, or a default (with or without notice, lapse of time, or both) under, any material Contract to which Allergan the Company or any of its Subsidiaries Affiliates is a party, party (other than the Organizational Documents Change of Allergan Control under and as defined in the Company Credit Agreements and the 2027 Notes Indenture resulting from the consummation of the Merger); (vii) provide access to or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential disclose information provided by or on behalf of Allergan that the Company or any of its Affiliates determines would jeopardize any attorney-client privilege or other applicable privilege or protection of the Company or any of its Affiliates; (viii) require the Company to prepare any financial statements or information (other than the Financing Information) that are not available to it and prepared in the ordinary course of its financial reporting practice; or (ix) require the Company to prepare or deliver any Excluded Information. Nothing contained in Section 7.14, this Section 7.15 or otherwise shall require the Company or any of its Affiliates, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing. Parent shall, promptly on request by the Company, reimburse the Company or any of its Affiliates for all reasonable and documented out-of-pocket costs incurred by them or their respective Representatives in connection with such cooperation and with any action taken in accordance with Section 7.14 and shall indemnify and hold harmless the Company and its Affiliates and their respective Representatives from and against any and all losses suffered or incurred by them in connection with the arrangement of the Debt Financing, any action taken by them in accordance with Section 7.14 or this Section 7.15 and any information used in connection therewith.
(c) The Parties hereto acknowledge and agree that the provisions contained in this Section 7.15 represent the sole obligation of the Company and its Subsidiaries with respect to cooperation in connection with the arrangement of any financing (including the Debt Financing) to be obtained by Parent with respect to the transactions contemplated by this Agreement, and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or modify such obligations. In no event shall the receipt or availability of any funds or financing (including the Debt Financing) by Parent, any of its Affiliates or any other financing or other transactions be a condition to any of Parent’s obligations under this Agreement. Notwithstanding anything to the contrary in this Agreement, the Company’s breach of any of the covenants required to be performed by it under this Section 7.15 shall not be considered in determining the satisfaction of the condition set forth in Section 8.2(b), unless such breach is the primary cause of Parent being unable to obtain the proceeds of the Debt Financing at the Closing.
(d) In addition, if, in connection with a marketing effort contemplated by the Debt Commitment Letter, Parent reasonably requests the Company to file a Current Report on Form 8-K pursuant to the Exchange Act that contains material non-public information which Parent in consultation with the Financing Parties and with the consent of the Company reasonably determines to include in a registration statement, customary offering memorandum or other offering document for the Debt Financing, then the Company shall promptly file such Current Report on Form 8-K.
(e) All nonpublic or otherwise confidential information regarding the Company or any of its Affiliates obtained by Parent or its Representatives pursuant to this Section 7.9 to 7.15 shall be kept confidential in accordance with the Confidentiality Agreement and the Clean Team Agreement; provided, provided that Allergan acknowledges Parent shall be permitted to disclose such information to (i) the Financing Entities subject to their confidentiality obligations under the Debt Commitment Letters and agrees that the confidentiality undertakings that will be obtained definitive documentation evidencing the Debt Financing and (ii) otherwise to the extent necessary and consistent with customary practices in connection with syndication of the Debt Financing will be in a form subject to customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesconfidentiality arrangements.
Appears in 2 contracts
Sources: Merger Agreement (Hill-Rom Holdings, Inc.), Merger Agreement (Baxter International Inc)
Financing Cooperation. (a) Until Prior to the earlier of Effective Time, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Company shall use its commercially reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, Company Entity and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, Representatives to use their commercially reasonable best efforts, to provide Parent with all cooperation reasonably requested by Parent to AbbVie assist it in causing the conditions in the Debt Commitment Letters to be satisfied or as is otherwise necessary or reasonably requested by Parent in connection with the Debt Financing, including:
(i) participation by officers and directors in a reasonable number of meetings (including one-on-one), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies and prospective lenders or investors and obtaining assistance from its Subsidiaries accountants, including participating in a reasonable number of drafting and accounting due diligence sessions;
(ii) assisting Parent and the Debt Financing Sources with the timely preparation of customary rating agency presentations, marketing materials, bank information memoranda and high-yield offering prospectuses or memoranda required in connection with the Financing;
(iii) executing and delivering pledge, mortgage and security documents, supplemental indentures, currency or interest hedging arrangements, other definitive financing documents, customary solvency certificates executed by the Chief Financial Officer (including relating to solvency matters of the Company before giving effect to the incurrence of the Debt Financing and the consummation of the Merger and the other transactions contemplated by this Agreement and such assistance Debt Financing), and other certificates or documents and back-up therefor as may be reasonably requested by AbbVie Parent or the Debt Financing Sources (including using commercially reasonable efforts to obtain consents of accountants for use of their reports in writing that is customary any materials relating to the Debt Financing and accountants' comfort letters, in connection with each case as reasonably requested by Parent), and otherwise reasonably facilitating the arranging, obtaining pledging of collateral and syndication the granting of security interests in respect of the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing Debt Financing provided that no obligation of the FinancingCompany or any Subsidiaries of the Company under any agreement, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion document or incorporation in any SEC filing pledge related to the Financing any of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into Financings shall be operative until the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers)Effective Time;
(iiiv) timely furnishing AbbVie Parent and its the Debt Financing Sources Sources, as promptly as practicable, with historical financial and other customary pertinent information (collectivelyprovided that Parent shall be responsible for the preparation, with the “Financing Information”) with respect to Allergan assistance of the Company and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings independent accountants, of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iiistatements) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan the Company and its Subsidiaries as may be reasonably requested by Parent, including, without limitation, audited annual consolidated balance sheets and related statements of income, stockholders' equity and cash flow of the Company and its Subsidiaries and unaudited quarterly consolidated balance sheets and related statements of income, stockholders' equity and cash flow of the Company and its Subsidiaries for each fiscal quarter ended after June 30, 2013 (which quarterly statements shall be delivered at least 45 days before the Closing Date) (all such information and documents in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to this Section 6.14(a)(iv), the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing"Required Financing Information");
(v) cooperating with Parent to obtain customary and reasonable corporate and facilities ratings, consents, approvals, authorizations, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance (including such affidavits and non-imputation endorsements in connection therewith) as reasonably requested by Parent;
(vi) assisting in negotiation of definitive documents as may be reasonably requested by Parent;
(vii) executing, delivering and entering into, immediately prior to the Effective Time, one or more securities purchase agreements, credit agreements, indentures, notes or guarantees on terms satisfactory to Parent in connection with the Debt Financing;
(viii) reasonably facilitating the pledging or the reaffirmation of the pledge of collateral (including obtaining and delivering any pay-off letters and other cooperation in connection with the consents repayment or other retirement of Allergan’s independent auditors existing indebtedness and the release and termination of any and all related liens) on or prior to use their audit reports on the audited Historical Financial Statements Closing Date, as well as cooperating to permit prospective lenders involved in the Financing to evaluate and assess the assets of Allergan the Company Entities for purposes of establishing collateral arrangements;
(ix) 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 references be delivered at the Closing, and giving any other necessary notices, to such independent auditors as experts allow for the payoff, discharge and termination in full at the Closing of all indebtedness;
(x) taking 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, including any high-yield debt financing, by the Surviving Corporation or any of its Subsidiaries concurrently with or immediately following the Effective Time; and
(xi) promptly and in any Marketing Material event at least ten (10) days prior to the Closing Date, furnishing Parent and registration statements the Debt Financing Sources with all documentation and related government filings filed other information required by regulatory authorities pursuant to applicable "know your customer" and anti-money laundering rules and regulations, including the Patriot Act.
(b) Nothing in this Section 6.14 shall require the Company Entities to (i) waive or used amend any terms of this Agreement or agree to pay any fees or reimburse any expenses prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent, or to give any indemnities that are effective prior to the Effective Time; or (ii) take any action that would unreasonably interfere with the ongoing operations of the Company and its Subsidiaries.
(c) The Company hereby consents to the use of the Company Entities' logos in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby; provided, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtednesshowever, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan Company or any of its Subsidiaries); and.
(xd) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all All non-public or other confidential information provided by or on behalf of Allergan the Company or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to Agreement shall be kept confidential in accordance with the Confidentiality Agreement; provided, however that Allergan acknowledges Parent and agrees Merger Sub shall be permitted to disclose such information to any financing sources or prospective financing sources and other financial institutions and investors that are or may become parties to the confidentiality undertakings that will be obtained Debt Financing and to any underwriters, initial purchasers or placement agents in connection with syndication the Debt Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as if parties thereto; or (ii) are subject to other customary confidentiality undertakings reasonably satisfactory to the Company.
(e) Promptly upon request by the Company, Parent shall reimburse the Company (or pay in advance) for any reasonable and documented out-of-pocket costs and expenses (including outside attorneys' fees) incurred by the Company in connection with the cooperation of the Financing will Company contemplated by this Section 6.14.
(f) The Company Entities and their respective Representatives shall be indemnified and held harmless by Parent from and against any and all liabilities, losses, damages, claims, costs, expenses (including attorneys' fees), interest, awards, judgments, penalties and amounts paid in a form customary for use settlement suffered or incurred by them in connection with their cooperation in arranging the syndication Financings pursuant to this Agreement or the provision of acquisition-related debt during a takeover offer period information utilized in compliance with connection therewith, except to the requirements extent resulting from, or by reason of information provided by or at the direction of the Panel and Company Entities or their respective Representatives, or to the Takeover Rulesextent that such liabilities, losses, damages, claims, costs or expenses, directly or indirectly, resulted from or arose out of the willful misconduct, bad faith or gross negligence of the Company Entities or their respective Representatives.
Appears in 2 contracts
Sources: Merger Agreement (Evans Hugh D), Merger Agreement (Anaren Inc)
Financing Cooperation. (a) Until Prior to the earlier of Closing, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Company shall use its reasonable best efforts, (and shall cause each of its Subsidiaries to to) use its reasonable best effortsefforts to provide to Parent, and shall use its reasonable best efforts to cause Representatives of the Company and its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, Subsidiaries to provide to AbbVie and its Subsidiaries such assistance as may be Parent, on a timely basis, all cooperation reasonably requested by AbbVie in writing that is customary Parent in connection with the arrangingarrangement, obtaining and syndication underwriting, syndication, sale, placement or consummation by Parent or any of its Subsidiaries of any debt financing obtained by Parent in connection with the Transactions (the “Financing”), including using reasonable best efforts with respect toby:
(i) participating in and assisting promptly furnishing Parent with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) such financial statements, financial data and other pertinent information regarding the participation by members Company and its Subsidiaries including (1) audited balance sheets and related statements of management operations, stockholders’ equity and cash flows and related notes thereto for the fiscal year most recently ended at least 75 days prior to the Closing Date and (2) unaudited balance sheets and related statements of Allergan with appropriate seniority in a reasonable number operations, stockholders’ equity and cash flows and related notes thereto of meetings, presentations, road shows, drafting sessions, due diligence sessions the Company and sessions with prospective lenders, investors and rating agencies, its Subsidiaries for each subsequent fiscal quarter ended at times and at locations reasonably acceptable least 45 days prior to Allergan and upon reasonable noticethe Closing Date (other than the fourth fiscal quarter of any fiscal year), (B) assisting with AbbVie’s such other historical financial and other data regarding the Company and its Subsidiaries required by Parent to permit Parent to prepare customary pro forma financial statements (provided that the Company shall not be responsible for the preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”any pro forma financial statements or pro forma adjustments thereto) and due diligence sessions related thereto, (C) delivering and consenting such information reasonably required relating to the inclusion or incorporation Company’s and its Subsidiaries’ oil and gas reserves that meet the requirements for customary offering documents for private placements of non-convertible high-yield bonds pursuant to Rule 144A under the Securities Act in any SEC filing related a “Rule 144A-for-life” offering, including with respect to the Financing underlying property interests held by the Company and its Subsidiaries (and including, for the avoidance of doubt, reserve reports evaluating the proved reserves and proved developed reserves of the historical audited consolidated financial statements Company and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents its Subsidiaries) (the “Historical Financial StatementsRequired Information”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie providing reasonable and customary assistance to Parent and any of its Financing Sources with historical financial financing sources in the preparation of (A) customary offering documents, offering memoranda, syndication documents and other customary information (collectively, the “Financing Information”) with respect to Allergan syndication and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources marketing documents and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary materials for Financings of the applicable type;rating agency presentations,
(iii) providing cooperating with the marketing efforts of Parent and any of its financing sources, including, to AbbVie’s legal counsel the extent applicable, obtaining representation and its independent auditors such authorization letters and arranging for customary documents auditor and reserve engineer consents for use of the Required Information and other customary information relating to Allergan financial data in the marketing and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;offering documentation,
(iv) causing Allerganfacilitating customary cooperation and assistance of the Company’s and its Subsidiaries’ independent auditors and reserve engineers in connection with “comfort” letters to be delivered in connection with any Financing, including by (A) using reasonable best efforts to cause the Company’s and its Subsidiaries’ independent auditors and reserve engineers to provide customary cooperation “comfort” letters (including “negative assurance” comfort, if appropriate) in connection with any capital markets transaction comprising a part of any Financing to the Financingapplicable financing sources and to participate in a reasonable number of due diligence sessions and (B) providing customary back-up certificates with respect to oil and gas reserves and financial data for which auditor and reserve engineer “comfort” is not provided;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection assisting with the Financingpreparation of definitive financing documents and providing financing sources with reasonable access to the properties, books and records of the Company and its Subsidiaries during normal working hours (to the extent practicable) and upon reasonable notice;
(vi) obtaining Allerganfacilitating the execution and delivery at the Closing of definitive documents (excluding any solvency certificate) related to the Financing, including the provision of guarantees and the pledging of collateral to Parent’s independent auditors’ customary comfort letters and assistance with financing sources at the accounting due diligence activities of the Financing SourcesClosing;
(vii) causing reasonably cooperating with the financing sources for any such Financing and their respective agents with respect to benefit from their due diligence, including by giving access to documentation reasonably requested by persons in connection with capital markets transactions and permitting Parent’s financing sources to conduct customary due diligence and evaluate the existing lender relationships assets of Allergan and its Subsidiariesthe Company for the purpose of establishing collateral arrangements as of the Closing;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of furnishing promptly all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection financing sources with the respect to any Financing that relates to under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationthe PATRIOT Act, the USA PATRIOT ACT. Notwithstanding anything to the contrary and in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective event at least three days prior to the Completion Closing Date or would be effective if to the Completion does not occur extent requested at least ten days prior to the Closing Date;
(except (xix) to the extent required reasonably requested by Section 7.9(b)▇▇▇▇▇▇, applicable Allergan Supplemental Indentures, causing the taking of corporate actions (y) customary officers’ certificates relating subject to the execution thereof that would not conflict with applicable Law and would be accurate in light occurrence of the facts Closing) by the Company and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize necessary to permit the completion of any attorney-client privilege Financing (provided, that such actions will only be required by any Representative of Allergan the Company or any Subsidiary of the Company who will continue to serve as a Representative of the Company after the Closing); and
(x) consenting to the use of the logos of the Company and its Subsidiaries (in connection with the syndication or marketing of the Financing, provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed logos are not used in a manner that would not result reasonably be expected to harm or disparage the Company, its Subsidiaries or their marks. Notwithstanding the foregoing, nothing in the loss of this Section 6.20(a) shall require any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel action to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith extent it (provided that such opinions 1) would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer unreasonably or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) materially interfere unreasonably with the business or operations of Allergan the Company or any of its SubsidiariesSubsidiaries or require the Company or any of its Subsidiaries to agree to pay any fees, reimburse any expenses or incur any liability or obligation (including any indemnification obligation) in any case prior to the Closing Date, other than fees, expenses, liabilities and obligations that are subject to reimbursement or indemnification pursuant to Section 6.20(d) below, (ii2) would require the Company or any of its Subsidiaries or their Representatives or Affiliates to execute, deliver or enter into, or perform any financing document, prior to the Closing (other than customary authorization letters, customary representation letters, customary back-up certificates and customary auditors’ and reserve engineers’ “comfort” and/or negative assurance letters to the extent contemplated by Section 6.20(a)), (3) could subject any director, manager, officer or employee of the Company or any of its Subsidiaries to any actual or potential personal liability other than liabilities that are subject to indemnification pursuant to Section 6.20(d) below or (4) would reasonably be likely to cause any representation or warranty in this Agreement to be breached breached, cause any condition to the Closing to fail to be satisfied or otherwise cause any breach of this Agreement, (x) none of the board of directors (or other similar governing body) of the Company shall be required to adopt resolutions approving the financing documents, in each case, the effectiveness of which is not contingent on the occurrence of the Closing and (y) neither the Company nor any of its Subsidiaries shall be required to provide any information to the extent it (1) would violate applicable material Law or the provisions of any material contract to which such Company or its Subsidiaries is a party or any Organizational Document applicable to such Company or its Subsidiaries, (2) could result in the loss of any attorney-client or other legal privilege as determined by Allergan such Company in good faith (in consultation with its counsel); or (3) would violate any applicable confidentiality obligation of such Company or its Subsidiaries in effect as of the date of this Agreement, in the case of each of clauses (1) through (3), so long as such Company provides Parent written notice of any information so withheld and reasonably cooperates with Parent in seeking to allow disclosure of such information in a manner that is not reasonably likely to cause such violation of material Law or material contract, result in the loss of such attorney-client or other legal privilege or violate any such confidentiality obligation. In no event shall the Company or any of its Subsidiaries (unless waived be in breach of this Agreement because of the failure by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan the Company or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach ofdeliver, or a default underafter use of its reasonable best efforts to do so, any material Contract financial or other information that is not currently readily available to which Allergan the Company or any of its Subsidiaries on the date of this Agreement or is a partynot otherwise prepared in the ordinary course of business at the time requested by Parent or for failure to obtain, the Organizational Documents after use of Allergan or its Subsidiaries or reasonable best efforts to do so, any applicable Law. AbbVie shall cause all non-public review of any financial or other confidential information provided by the Company’s and its Subsidiaries’ accountants, reserve engineers or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesother representatives.
Appears in 2 contracts
Sources: Merger Agreement (California Resources Corp), Merger Agreement (Berry Corp (Bry))
Financing Cooperation. (a) Until From the earlier of the Completion and the valid termination date of this Agreement pursuant to and in accordance with Article 9until Closing, Allergan the Company shall use its commercially reasonable best effortsefforts to, and shall cause each of its Subsidiaries to use its reasonable best effortsAffiliates to, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be all cooperation reasonably requested by AbbVie Parent (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Affiliates beyond the level of involvement ordinarily required in writing that is customary similar financing transactions) in connection with obtaining the arranging, obtaining and syndication of financing contemplated by the FinancingDebt Commitment Letter, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting due diligence sessions, due diligence drafting sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (Bii) assisting with AbbVie’s the preparation of customary materials for registration statementsrating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations business projections and similar documents required in connection with the financing contemplated by the Financing Commitments; provided that any private placement memoranda or prospectuses shall contain disclosure and financial statements reflecting the Surviving Corporation and/or its Affiliates as the obligor, (collectivelyiii) using commercially reasonable efforts to cause its independent accountants to provide assistance and cooperation to Parent, “Marketing Material”) including participating in a reasonable number of drafting sessions and accounting due diligence sessions related theretosessions, (Civ) executing and delivering any pledge and consenting to the inclusion security documents, currency or incorporation in any SEC filing related to the Financing interest hedging arrangements or other definitive financing documents or other certificates, legal opinions and documents as may be reasonably requested by Parent (including certificates of the historical audited consolidated chief financial officer or any of the Company’s Affiliates with respect to financing matters) or otherwise facilitating the pledging of collateral as may be reasonably requested by Parent; provided that any obligations contained in such documents shall be effective no earlier than as of the Effective Time, (v) furnishing Parent and Merger Sub and their financing sources as promptly as practicable with financial and other pertinent information regarding the Company and its Affiliates as may be reasonably requested by Parent, including all financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) data of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities ActK, including audit reports of annual financial statements audits thereto to the extent so required (which audit reports audits shall not be subject to any “going concern” qualificationsunqualified), or under the Securities Act and of the type and form customarily included in offering documents used in private placements under Rule 144A of the Securities Act, to consummate the offerings of debt securities contemplated by the Debt Commitment Letter (information required to be delivered pursuant to this clause (v) being referred to as, the “Required Financial Information”), (vi) obtaining accountants’ comfort letters, accountants’ consents, legal opinions, surveys and title insurance as reasonably requested by Parent, (vii) taking all actions reasonably necessary to (A) permit the lenders under the Debt Commitment Letter to evaluate the Company’s and its Affiliates’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements, and (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents establish bank and other customary information relating to Allergan accounts and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions blocked account agreements and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used lock box arrangements in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters foregoing, provided that such accounts, agreements and assistance with arrangements will not become active or take effect until the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
Effective Time, (viii) providing documents entering into one or more credit or other agreements on terms reasonably satisfactory to Parent in connection with the financing contemplated by the Debt Commitment Letter; provided that neither the Company nor any of its Affiliates shall be required to enter into any agreement that is not contingent upon the Closing (including the entry into any purchase agreement), and (ix) take all corporate actions, subject to the occurrence of the Effective Time, reasonably requested by AbbVie Parent to permit the consummation of the financing contemplated by the Debt Commitment Letter and the direct borrowing or incurrence of all of the Financing Sources relating to proceeds of the repayment or refinancing of any indebtedness for borrowed money of Allergan or financing contemplated by the Debt Commitment Letter. Neither the Company nor any of its Subsidiaries Affiliates shall be required to be repaid pay any commitment or refinanced on other similar fee or incur any other liability in connection with the Completion Date and financing contemplated by the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (Commitments prior to the extent required) evidence that notice Effective Time. Parent and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company and its Affiliates for and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of the financing contemplated by the Commitments and any such repayment has been timely delivered information utilized in connection therewith. Notwithstanding anything to the holders contrary, the condition set forth in Section 6.3(b) of such indebtednessthis Agreement, in each case in accordance with as it applies to the terms Company’s obligations under this Section 5.12, shall be deemed satisfied unless the financing contemplated by the Debt Commitment Letter (or any alternative financing) has not been obtained as a result of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring Company’s willful and material breach of its obligations under this Section 5.12. The Company hereby consents to the reasonable use of all of Allergan’s its and its Affiliates’ logos in connection with the Financing (financing contemplated by the Commitments; provided that such logos are used solely in a manner that is not intended to and is not or reasonably likely to harm or disparage Allergan the Company or any of its Subsidiaries Affiliates or the reputation or goodwill of Allergan the Company or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACTAffiliates. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all All non-public or other otherwise confidential information provided regarding the Company and its Affiliates obtained by Parent or on behalf of Allergan or any of its Subsidiaries or the Parent Representatives pursuant to this Section 7.9 to 5.12 shall be kept confidential by Parent in accordance with the Confidentiality Agreement; provided. Notwithstanding the foregoing sentence, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained any offering documents, private placement memoranda, bank information memoranda, prospectuses or other documents prepared pursuant to this Section 5.12 shall contain such information as is customarily contained in connection with syndication of the Financing will be in a form customary documents for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulessimilar financing transaction.
Appears in 2 contracts
Sources: Merger Agreement (Vestar Capital Partners v L P), Merger Agreement (Radiation Therapy Services Inc)
Financing Cooperation. (a) Until Prior to Closing, upon the earlier reasonable request of Parent, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its and their respective officersRepresentatives who are not officers or employees of the Company or its Subsidiaries to, employees and advisors and other Representativesin each case, including legal and accounting advisors, to use their reasonable best efforts, efforts to provide to AbbVie and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary cooperate with Parent in connection with the arranging, obtaining and syndication of the any Financing, including using any offering of securities, requested repayment or refinancing of Indebtedness, and such reasonable best efforts with respect to:
shall include: (i) participating in and assisting with the due diligence, syndication or other marketing causing management teams of the FinancingCompany, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority and expertise, at reasonable times and upon reasonable advance notice, to participate in a reasonable number of meetings, rating agency presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lendersroad shows, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
if any; (ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary providing information with respect to Allergan the Company and its Subsidiaries to Parent and its Representatives (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if including the Financing were incurred Sources) as reasonably requested by AbbVie Parent; (iii) preparing and registered furnishing to Parent on Form S-3 under a timely basis the Securities ActRequired Information, which shall be prepared in accordance with applicable securities Laws, and other financial data (including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) such information reasonably necessary to permit AbbVie allow Parent to prepare pro forma financial statements customary for Financings of in accordance with applicable securities Laws) and such other financial information concerning the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan Company and its Subsidiaries as may be reasonably requested by Parent, including, without limitation, balance sheet, income statements and statements of cash flows for each subsequent interim financial quarter ended at least forty-five (45) days prior to the Closing Date; (iv) assisting in connection the preparation of offering memoranda, private placement memoranda, prospectuses, prospectus supplements, bank confidential information memoranda, rating agency presentations, marketing materials (within the meaning of applicable securities Laws) and similar documents (“Offering Documents”); (v)
(A) using its reasonable best efforts to cause Deloitte or other relevant accountants of the Company and its respective Subsidiaries to cooperate with their delivery of any customary negative assurance opinions Parent, including by participating in drafting sessions and accounting due diligence sessions, and using its reasonable best efforts to obtain the consent of, and customary comfort letters relating from, such accountants to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used extent required in connection with any offering of securities by Parent if necessary for Parent’s use of financial statements of the Company or its Subsidiaries on a timely basis and (B) cooperating with Parent’s legal counsel in connection with any legal opinions that such counsel may be required to deliver in connection with any Financing;
; (vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with assisting in the accounting due diligence activities amendment or novation of any Derivative Transaction of the Financing Sources;
Company or its Subsidiaries, in each case, on terms that are reasonably requested by Parent; provided that no obligation of the Company or its Subsidiaries under any such amendments or novations shall be effective until the Closing Date; (vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of furnishing promptly all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries required by any Governmental Authority or as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the any Financing that relates to Source under applicable “know your customer,” anti-bribery and anti-money laundering rules and regulations, including without limitationthe PATRIOT Act, the USA PATRIOT ACT. Notwithstanding anything Foreign Corrupt Practices Act of 1977, as amended, 15 U.S.C. §§ 78dd 1 et seq., and economic sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department to the contrary extent requested at least seven (7) Business Days prior to Closing; (viii) in this Section 7.9(aconnection with any Financing, executing and delivering any definitive financing documents as reasonably requested by Parent and delivering such officer’s certificates (other than any solvency certificate) as are customary in financings of such type and as are, in the good faith determination of the persons executing such officer’s certificates, accurate; provided that no obligation of the Company or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries under any such definitive financing documents, including any pledge and security documents, shall be required to take or permit effective until the Closing Date; (ix) causing the taking of any action pursuant corporate, limited liability company or partnership actions, as applicable, by the Company or its Subsidiaries reasonably necessary to permit the completion of any Financing; (x) seeking to obtain customary payoff letters, lien terminations and releases and instruments of discharge to be delivered at Closing providing for the payoff, discharge and termination on the Closing Date of all Indebtedness and release of Encumbrances contemplated by any repayment or refinancing of such Indebtedness to be paid off, discharged and terminated on the Closing Date; provided that the documents in respect of such arrangements contemplated by this clause (x) shall not need to be effective until the Closing Date; and (xi) using reasonable best efforts to ensure that the syndication efforts in respect of any Financing benefit from the Company’s existing lending and investment banking relationships. If at any time any information in any Offering Document should be discovered by the Company or any of its Representatives that should be set forth in an amendment or supplement to such Offering Document, so that such Offering Document shall not contain an untrue statement of a material fact, omit to state a material fact that is required to be stated therein or omit to state a material fact that is necessary to be stated therein in order for a statement not to be misleading, the Company shall promptly notify Parent thereof and provide any such information to be set forth in such amendment or supplement.
(b) Nothing in this Section 7.9(a) or Section 7.9(b) below to 5.15 shall (i) require any such cooperation to the extent that it would (A) require the Company to pay any commitment or other fee fees (unless promptly reimbursed in accordance with Section 5.15(c)) or otherwise incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute liabilities or deliver give any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case indemnities that would be effective prior to the Completion Date Closing (other than such liabilities referred to in Section 5.15(c)(i) or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered5.15(c)(ii)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) unreasonably interfere unreasonably with the ongoing business or operations of Allergan the Company or its Subsidiaries, (iiC) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan require the Company or any of its Subsidiaries to incur enter into or approve any personal liability agreement or other documentation that would be effective prior to the Closing or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Closing, (D) require the Company, any of its Subsidiaries or any of their respective boards of directors (or equivalent bodies) to approve or authorize any Financing, (E) cause any condition to the Closing set forth in Section 6.1 or Section 6.2 to not be satisfied or (ivF) conflict with or violate the Company’s or its Subsidiaries’ respective Organizational Documents or any applicable Law in any material respect or result in a material violation or breach of, or a default under, any material Material Contract or (ii) require the Company to which Allergan cause the delivery of legal opinions or reliance letters or any of certificate as to solvency.
(c) Promptly upon the Company’s request, all reasonable and documented out-of-pocket fees and expenses incurred by the Company and its Subsidiaries in connection with the activities set forth in Section 5.15(a) shall be paid or reimbursed by Parent, and Parent shall indemnify and hold harmless the Company and its Subsidiaries from and against any claim, loss, damage, injury, liability, judgment, award, penalty, fine, Tax, cost (including cost of investigation), expense (including reasonable fees and expenses of counsel and accountants) or obligation suffered or incurred by them in connection with any Financing and any information utilized in connection therewith (other than (i) with respect to information relating to the Company and its Subsidiaries provided by the Company in writing for use in the Offering Documents to the extent any such obligation is a partyresult of any such information containing an untrue statement of a material fact, omitting to state a material fact that is required to be stated therein or omitting to state a material fact that is necessary to be stated therein in order for such information not to be misleading and (ii) to the Organizational Documents extent such liability or obligation arise from gross negligence or bad faith of Allergan or the Company and its Subsidiaries or a Willful and Material Breach by the Company.
(d) Notwithstanding anything in this Agreement to the contrary, in no event will any applicable Law. AbbVie shall cause all non-public failure by the Company to comply with this Section 5.15 be used by Parent or other confidential information provided by Merger Sub as a basis to (x) terminate this Agreement pursuant to Section 7.1(c)(i), except to the extent the Company has acted in bad faith or on behalf of Allergan or any of committed a Willful and Material Breach with respect to its Subsidiaries or Representatives obligations pursuant to this Section 7.9 5.15 or (y) assert the failure of the condition set forth in Section 6.2(b) to be kept confidential satisfied, except to the extent that (A) such failure by the Company to comply with this Section 5.15 is related to a Financing Failure or (B) the Company has acted in accordance bad faith or committed a Willful and Material Breach with respect to its obligations pursuant to this Section 5.15.
(e) Without limiting the Confidentiality Agreementgenerality of the foregoing, promptly following Parent’s request, the Company shall deliver a notice (an “Existing Loan Notice”) prepared by Parent, which notice shall be in form and substance reasonably acceptable to the Company, to the lenders under the Company’s and its Subsidiaries’ then existing credit facilities or term loans specified in such Existing Loan Notice (the “Existing Loan Lenders”) notifying each of such Existing Loan Lenders of this Agreement and the contemplated Merger. At Parent’s election, the Existing Loan Notice to certain Existing Loan Lenders may include a request for a consent, which request shall be in form and substance reasonably acceptable to the Company, to (i) the consummation of the Transactions, and (ii) certain modifications of (or waivers under or other changes to) the documentation governing the relevant Indebtedness held by such Existing Loan Lenders; provided, that Allergan acknowledges and agrees that no such modifications, waivers or changes shall be effective prior to the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesEffective Time.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Washington Gas Light Co)
Financing Cooperation. (a) Until Prior to the earlier of Closing or, if earlier, the Completion and the valid termination of this Agreement pursuant to Agreement, the Company will, and in accordance with Article 9will cause its Subsidiaries to, Allergan shall use its reasonable best effortsefforts (at Parent’s sole cost and expense) to, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie the appropriate Representatives of the Company and its Subsidiaries to, provide such assistance cooperation as may be is customary and reasonably requested by AbbVie in writing that is customary Parent in connection with any Debt Financing, which cooperation will include (1) as promptly as practicable, furnishing Parent with the arranging, obtaining Required Information and syndication of other customary or pertinent information regarding the Company and its Subsidiaries reasonably requested by Parent (or the Debt Financing Sources) in connection with such Debt Financing, including using reasonable best efforts with respect to:
preliminary or “flash” information if requested and information relating to the rental fleet of the Company and its Subsidiaries, (i2) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and drafting sessions with prospective lenders, investors providers or potential providers of the Debt Financing and rating agencies, agencies during normal business hours and at mutually agreed times and at locations reasonably acceptable to Allergan and upon reasonable noticelocations, (B3) reasonably assisting with AbbVie’s Parent in the preparation of customary materials for customarily requested to be used in connection with obtaining the Debt Financing, including rating agency presentations, road show materials, bank information memoranda, credit agreements, registration statements, prospectuses, offering memoranda, bank syndication materials, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations memoranda and similar documents customarily required in connection with the Financing (collectivelyDebt Financing, “Marketing Material”) including the marketing and due diligence sessions related theretosyndication thereof, (C4) delivering assisting Parent with Parent’s preparation of pro forma financial information and consenting to projections, estimates of cost savings, synergies and post-closing adjustments, (5) reasonably cooperating with the inclusion or incorporation in marketing efforts for any SEC filing related to the Financing portion of the historical audited consolidated financial statements Debt Financing, including using its reasonable best efforts to ensure that any syndication efforts benefit from its existing lending relationships and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings using reasonable best efforts to assist Parent in obtaining any credit ratings in connection with the Marketing Material Debt Financing, (in each case, as applicable, subject 6) providing customary authorization letters authorizing the distribution of information provided by the Company or its Subsidiaries to prospective lenders and containing a customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its representation to the Debt Financing Sources with historical financial for the Debt Financing that such information provided by the Company or its Subsidiaries does not contain a material misstatement or omission and other containing a representation to the Debt Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Subsidiaries or its or their securities, (7) causing the independent accountants of the Company to (A) render customary information “comfort letters” (collectively, the “Financing Information”including customary negative assurance comfort and change period comfort) with respect to Allergan financial information regarding the Company and its Subsidiaries as is reasonably requested contained in any materials relating to the Debt Financing, (B) provide consents for use of their reports and opinions in any documents filed or furnished by AbbVie Parent with the SEC or its in any other materials or disclosures relating to the Debt Financing Sources and customarily required in Marketing Material for Financings which financial information of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan Company and its Subsidiaries is included and (AC) participate in a reasonable number of the type that would be required by Regulation S-X due diligence sessions, (8) delivering information and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements documentation related to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan Company and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of prior to the Completion Closing Date such documentation and other information about Allergan and its Subsidiaries as is required and reasonably requested in writing by AbbVie the Debt Financing Sources at least ten (10) Business Days in advance of prior to the Completion Closing Date in connection with the Financing that relates respect to compliance under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation, the USA PATRIOT ACT. Notwithstanding anything U.S.A. Patriot Act of 2001 and rules adopted by the Financial Crimes Enforcement Network of the U.S. Treasury Department, (9) (A) assisting with the pledging of collateral for the Debt Financing, including by permitting the evaluation or appraisal of assets, assisting with field audits, due diligence examinations and evaluations of the current assets, inventory and cash management systems of the Company and its Subsidiaries, (B) assisting with obtaining landlord waivers, consents or estoppels, and (C) assisting with obtaining releases of existing Liens, (10) taking all corporate actions, subject to the contrary occurrence of the Closing, reasonably requested by Parent to permit the consummation of the Debt Financing, (11) cooperating in satisfying the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent the satisfaction of such condition requires the cooperation of, or is within the control of, the Company and its Subsidiaries and (12) assisting with the preparation and execution of definitive Debt Financing Documents (including any guarantee, pledge and security documents, supplemental indentures, currency or interest rate hedging arrangements, other definitive financing documents, or other certificates or documents as may be reasonably requested by Parent or the Debt Financing Sources), and the schedules and exhibits thereto, in each case, as may be reasonably requested by P▇▇▇▇▇.
(b) Nothing in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit 7.19 will require the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below Company Group to (i) waive or amend any terms of this Agreement, pay any commitment or other fee or incur similar fee or agree to pay any liability (other than third-party costs and fees or reimburse any expenses that are or otherwise issue or provide any indemnities prior to be promptly reimbursed the Closing Date, for which it has not received prior reimbursement or is not otherwise indemnified by AbbVie upon request by Allergan pursuant to Section 7.9(c)), or on behalf of Parent; (ii) execute without limiting its obligations to deliver condition redemption notices, executed Payoff Letters, termination notices, payoff letters, bills of sale and Lien release documentation pursuant to Sections 7.16 and 7.17, enter into, approve, modify or deliver perform any definitive financing documents agreement or commitment or distribute any other agreement, certificate, document or instrument, or agree cash (except to any change the extent subject to or modification of any existing agreement, certificate, document or instrument, in each case concurrent reimbursement by Parent) that would will be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), Closing Date; (iii) provide access to or disclose information that Allergan or give any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, indemnities in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shallDebt Financing that are effective prior to the Closing Date, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel only to the trustee under extent previously agreed in writing by the applicable Indenture that Company; (iv) take any action that, in the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light good faith determination of the facts and circumstances at Company, would unreasonably interfere with the time delivered)), conduct of the business of the Company Group in any material respect; (v) be an issuer or other obligor except to the extent contemplated with respect to Required Information, prepare separate financial statements for any of the Financing Company Group to the extent not customarily prepared by the Company Group and to the extent such preparation would be unduly burdensome or change any fiscal period; (vi) adopt any resolutions, execute any consents or otherwise take any corporate or similar action to be effective prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or Closing; (vii) prepare provide any pro forma financial information legal opinion on or projections, prior to the Closing; (Bviii) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably will conflict with the business or operations of Allergan or violate its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan organizational documents or any of its Subsidiaries (unless waived by AbbVie), (iii) cause applicable laws in any director, officer material respect or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) would result in a material violation or breach of, or a default under, any material Contract agreement to which Allergan any member of the Company Group is a party or (ix) prepare or provide Excluded Information. In addition, no action, liability or obligation of the Company Group or any of its Subsidiaries is a partyRepresentatives pursuant to any certificate, agreement, arrangement, document or instrument relating to the Organizational Documents Debt Financing (other than (i) to the extent contemplated with respect to Required Information, (ii) customary representation letters to auditors, (iii) in connection with Sections 7.16 and 7.17 or (iv) customary authorization letters (including with respect to the presence or absence of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all material non-public information and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing based on financial information and data derived from the Company’s historical books and records)) will be effective until the Closing Date, and the Company Group will not be required to take any action pursuant to any certificate, agreement, arrangement, document or instrument (other confidential than (i) to the extent contemplated with respect to Required Information, (ii) customary representation letters, (iii) in connection with Sections 7.16 and 7.17 or (iv) customary authorization letters (including with respect to the presence or absence of material non-public information provided by and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing based on financial information and data derived from the Company’s historical books and records)) that is not contingent on the occurrence of the Closing or on behalf that must be effective prior to the Closing Date. Except in connection with the delivery of Allergan a chief financial officer certificate in connection with any Required Information, nothing in this Section 7.19 will require (1) any officer, employee or Representative of the Company Group to deliver any certificate or opinion or take any other action under this Section 7.19 that would reasonably be expected to result in personal liability to such officer, employee or Representative; or (2) the Company Board to approve any Debt Financing or Contracts related thereto, effective prior to the Closing Date. For the avoidance of doubt, neither the Company nor any of its Subsidiaries or Representatives pursuant to this Section 7.9 shall be required to be kept confidential in accordance an issuer or obligor with respect to the Confidentiality AgreementDebt Financing prior to the Closing Date.
(c) The Company shall not be required to provide any information the disclosure of which is prohibited or restricted under applicable Law or is legally privileged; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication Parent is notified of the Financing will be in a form customary nature of such information for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Ruleswhich such disclosure is prohibited.
Appears in 2 contracts
Sources: Merger Agreement (United Rentals, Inc.), Merger Agreement (United Rentals North America Inc)
Financing Cooperation. (ai) Until Prior to the earlier of Closing, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall Company will use its reasonable best efforts, and shall will cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie Parent and its Subsidiaries such assistance as may be Merger Sub with all cooperation reasonably requested by AbbVie them to assist them in writing that is customary in connection with the arranging, obtaining arrangement and syndication consummation of the Debt Financing, including using reasonable best efforts with respect to. Such assistance shall include:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions preparing and sessions with prospective lenders, furnishing to Parent and any financing sources and other financial institutions and investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting that are or may become parties to the inclusion or incorporation in any SEC filing related to the Debt Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial StatementsFinancing Sources”) and as promptly as practicable all available pertinent financial information (D) delivering customary authorization lettersincluding financial estimates, management representation lettersbudgets, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial forecasts and other customary information (collectively, the “Financing Information”forward-looking information) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements disclosures relating to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan Company and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financingby Parent or Merger Sub;
(ivB) causing Allergan’s independent auditors designating appropriate members of senior management of the Company to provide participate in a reasonable number of lender presentations (including a customary cooperation bank meeting with the Financing Sources acting as lead arrangers or agents for, and material prospective Financing Sources for, the Debt Financing), and due diligence sessions;
(vC) obtaining participation by senior management of the consents of Allergan’s independent auditors to use their audit reports on Company in the audited Historical Financial Statements of Allergan negotiation of, and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used assisting Parent in connection with the preparation of, and executing and delivering, definitive financing documents, including any pledge and security documents, guarantee and collateral documents and other schedules, exhibits, collateral materials, certificates and documents as may be reasonably requested by Parent, Merger Sub or the Lenders, 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 Offer Closing;
(viD) obtaining Allergan’s independent auditors’ customary comfort letters furnishing Parent and assistance the Lenders, as promptly as practicable (but in any event, with respect to financial statements required to be filed with the accounting due diligence activities Company’s Form 10-Q or Form 10-K, as applicable, by no later than the filing deadline required therefor under the Exchange Act), with the audited and unaudited financial information required to be delivered pursuant to the Debt Commitment Letter (the “Required Financial Information”) (provided, that the timely filing by the Company of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan required financial statements on Form 10-K and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case Form 10-Q in accordance with the terms applicable rules and requirements of the definitive documents governing such indebtedness SEC shall satisfy the requirements of this definition) and all other financial information (provided including executive level financial analyses for the Company and its Subsidiaries, on a consolidated basis, with respect to each calendar month ended during the period between the date of this Agreement and the Closing Date), business and other financial data, audit reports and other information regarding the Company and its Subsidiaries of the type and for the time periods that any such notice are reasonably requested by Parent, Merger Sub or payoff letter shall be expressly conditioned on the Completion)Lenders;
(ixE) procuring consents 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 with respect to the reasonable use Indebtedness required by the Debt Commitment Letters to be terminated, in each case, reasonably satisfactory to Parent, and giving any other necessary notices and otherwise cooperating in the prepayment in full and termination in full of any such Indebtedness and the termination in full of all guaranties and security interests in connection therewith;
(F) reasonably facilitate the granting of Allergan’s logos security interests (and perfection thereof) in collateral in connection with the Debt Financing (including the delivery of stock certificates), and the preparation, execution and delivery of guarantees, mortgages, other definitive financing documents or other certificates or documents as may be reasonably requested by Parent or Merger Sub, provided that all of the foregoing are not effective until the Offer Closing;
(G) reasonably cooperate in satisfying the conditions precedent set forth in the Debt Financing Letters or any definitive documentation relating thereto, including obtaining insurance certificates and endorsements;
(H) consenting to the use of all logos of the Company and its Subsidiaries in connection with the Debt Financing so long as such logos (i) are used solely in a manner that is not intended to and is not reasonably or likely to harm or disparage Allergan the Company or any of its Subsidiaries or the reputation or goodwill of Allergan the Company or any of its Subsidiaries)Subsidiaries and (ii) are used solely in connection with a description of the Company, its business and products or the transactions contemplated hereby; and
(xI) providing at least three (3) Business Days in advance of furnishing Parent and the Completion Date such Lenders with all documentation and other information about Allergan related solely to the Company and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates U.S. regulatory authorities pursuant to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), .
(ii) execute or deliver Notwithstanding any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification provision of any existing agreement, certificate, document or instrument, in each case that would be effective prior this Agreement to the Completion Date or would be effective if contrary, nothing in this Agreement will require the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Company or any of its Subsidiaries reasonably determines to: (A) enter into any definitive agreement before the occurrence of the Offer Closing; (B) give any indemnities the effectiveness of which is not conditioned on the occurrence of the Offer Closing; (C) provide any information the disclosure of which is prohibited or restricted under applicable Law, is legally privileged or would jeopardize violate confidentiality obligations owing to third parties; or (D) take any attorney-client privilege action that would violate any applicable Laws or would result in a violation or breach of, or default under, any Material Contract. No action, liability or obligation of Allergan or the Company, any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use or any of their respective reasonable best efforts directors, officers, employees, agents or other Representatives pursuant to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege)certificate, (iv) deliver agreement, arrangement, document or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel instrument relating to the trustee under Debt Financing (other than the applicable Indenture that authorization and representation letters referred to above) will be effective until the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty Offer Closing. Nothing in this Agreement to be breached by Allergan will require: (x) any directors, officers, employees, agents or any other Representatives of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan the Company or any of its Subsidiaries to incur deliver any certificate or opinion or take any other action prior to the Offer Closing or that would reasonably be expected to result in personal liability to such director, officer, employee, agent or other representative; or (ivy) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication members of the Financing will be in a form customary for use in Company Board to approve any financing or Contracts related thereto prior to the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesOffer Closing.
Appears in 2 contracts
Sources: Merger Agreement (MGC Parent LLC), Merger Agreement (MGC DIAGNOSTICS Corp)
Financing Cooperation. (a) Until From the date hereof until the Closing, or the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9Section 8.01, Allergan shall use its reasonable best effortsthe Company shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its commercially reasonable best efforts to cause its and their respective officers, employees and employees, advisors and other RepresentativesRepresentatives to, including legal and accounting advisors, to use their commercially reasonable best efforts, efforts to provide to AbbVie and its Subsidiaries such assistance as may be customary cooperation reasonably requested by AbbVie Parent in writing that is customary a timely manner in connection with the arrangingdocumentation and consummation of any debt financing arranged by Parent or its Affiliates in connection with the transactions contemplated hereby (the “Debt Financing”), obtaining and syndication of the Financing, including which shall include using commercially reasonable best efforts with respect to:
: (i) participating in at reasonable times, upon reasonable advanced notice and assisting with the due diligenceat reasonable locations, syndication or other marketing cause appropriate members of the Financing, including using reasonable best efforts with respect management team of the Company to (A) the participation by members of management of Allergan with appropriate seniority participate in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions similar presentations to and with prospective lenders, investors the Debt Financing Sources and rating agencies, at times in each case, to the extent usual and at locations customary for debt financings of a type similar to the Debt Financing and reasonably acceptable to Allergan and upon reasonable noticerequired in connection with the Debt Financing, (Bii) assisting furnish Parent and the Debt Financing Sources with AbbVie’s the historical financial statements of the Company and its Subsidiaries and such other available financial information of the Company and its Subsidiaries reasonably requested by Parent in connection with the Debt Financing that is customarily required for the arrangement of debt financings similar to the Debt Financing, (iii) furnish Parent and the Debt Financing Sources with information regarding the Company and its Subsidiaries in connection with the preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuseslender presentations, rating agency presentations and other similar documents and materials that are usual and customary for debt financings of a type similar to the Debt Financing and reasonably required in connection with the Debt Financing, (iv) assist, to the extent reasonably requested by Parent, in the preparation of customary definitive financing documentation for the Debt Financing (collectivelyincluding, “Marketing Material”) to the extent reasonably requested by Parent, any customary authorization letters that are reasonably satisfactory to the Company, officer’s certificates and due diligence sessions related theretoschedules), (Cv) delivering and consenting facilitate the pledging of collateral to the inclusion or incorporation in any SEC filing related extent required by the Debt Financing Sources to be pledged on the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated Closing Date (including by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings providing reasonable cooperation in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions release of related Liens and disclaimers);
(iitermination of security interests) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating provide, at least three Business Days prior to the repayment or refinancing of any indebtedness for borrowed Closing Date, all documentation required by applicable “know your customer” and anti-money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected therebylaundering Applicable Laws, including customary payoff letters and (the USA PATRIOT Act, that has been requested in writing at least ten Business Days prior to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring Closing Date. The Company consents to the reasonable use of all any logos of Allergan’s logos the Company or its Subsidiaries in connection with the Debt Financing (in a manner usual and customary for debt financings of a type similar to the Debt Financing; provided that such logos are used solely in a manner that is not intended to and is not to, or reasonably likely to to, harm or disparage Allergan the Company or its Subsidiaries or the reputation or goodwill of Allergan the Company or its Subsidiaries or any of their respective products, services, offerings or intellectual property rights.
(b) Notwithstanding anything in this Agreement to the contrary, nothing contained in this Agreement shall require the Company, any of its Subsidiaries or any of their respective officers, employees, advisors and other Representatives to (I) cooperate to the extent such cooperation would interfere unreasonably (in the judgment of the Company) with the business or operations of the Company or any of its Subsidiaries); and
, (xII) providing at least three (3) Business Days in advance encumber any of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance assets of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) Company or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall or otherwise be required an issuer, guarantor or other obligor with respect to take the Debt Financing prior to the Closing Date, (III) pay, or permit the taking of any action pursuant commit to this Section 7.9(a) or Section 7.9(b) below to (i) pay pay, any commitment or other fee or incur make any liability other payment, in each case, in connection with the Debt Financing prior to the Closing Date, (other than third-party costs and expenses IV) take, or commit to take, any action that are would reasonably be expected to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)conflict with, violate or result in a breach of or default under any contract in effect as of the date hereof (including this Agreement), any organizational document of the Company or any of its Subsidiaries or any Applicable Law, (iiV) take, or commit to take, any action to authorize or approve, or execute or deliver any definitive financing documents or any other agreement, certificatecertificate or other document related to the Debt Financing (other than the authorization letters referred to in clause (iv) above) unless (x) such Person will continue to serve as a director or manager or officer, as the case may be, after the Closing Date and (y) the effectiveness of such authorization or approval or agreement, certificate or other document is expressly made contingent upon the occurrence of the Effective Time, (VI) incur, or instrumentcommit to incur, or be required to reimburse, or commit to reimburse, any cost, expense, liability or obligation or provide or agree to provide any change to or modification of any existing agreement, certificate, document or instrumentindemnity, in each case that would be effective case, in connection with the Debt Financing prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental IndenturesClosing Date, (yVII) customary officers’ certificates relating to the execution thereof take any action that would not conflict with applicable Law and would be accurate in light could subject any director, officer, employee, agent, manager, consultant, advisor or other representative of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant Company or any of its Subsidiaries to the clause (i)(D) above)any actual or potential personal liability, (iiiVIII) provide any information regarding any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other post-Closing pro forma adjustments, or prepare any pro forma financial statements or other post-Closing financial information, (IX) provide access to or disclose information that Allergan the Company determines in good faith could jeopardize any attorney client privilege of, or conflict with any confidentiality obligations binding on, the Company or any of its Subsidiaries reasonably determines would jeopardize or (X) deliver any attorney-client privilege financial or other information that is not currently readily available or prepared in the ordinary course of Allergan or any business of the Company and its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached requested by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable LawParent. AbbVie shall cause all All non-public or other confidential information provided by or on behalf of Allergan the Company or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to 6.17 shall be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges . Parent and agrees Merger Sub acknowledge and agree that the confidentiality undertakings that will be obtained in connection with syndication obligations of the Financing will be in a form customary for use in Company under this Section 6.17 are the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements sole obligations of the Panel Company and its Subsidiaries with respect to the Takeover RulesDebt Financing and no other provision of this Agreement shall be deemed to expand or modify such obligation.
Appears in 2 contracts
Sources: Merger Agreement (DSP Group Inc /De/), Merger Agreement (DSP Group Inc /De/)
Financing Cooperation. The Company shall and shall cause its subsidiaries to, at Parent’s sole expense, use reasonable best efforts to provide all cooperation in connection with the arrangement of the Financing (for purposes of this Section 6.13, including (i) any flex applicable to the Debt Financing and (ii) any alternative financing obtained in connection with Section 6.12(c)) as may be reasonably requested by Parent. Such cooperation by the Company shall include, at the reasonable request of Parent, (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant agreeing to and in accordance with Article 9, Allergan shall use its reasonable best effortsenter into such agreements, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its deliver such officer’s certificates (including a solvency certificate of the chief financial officer of the Company in the form contemplated by the Financing Commitments), as are customary in financings of such type and their respective officersas are, employees in the good faith determination of the persons executing such officer’s certificates, accurate, and advisors agreeing to pledge, grant security interests in, and other Representativesotherwise grant liens on, including legal and accounting advisors, the Company’s assets pursuant to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance agreements as may be reasonably requested by AbbVie in writing requested, provided that is customary in connection with the arranging, obtaining and syndication no obligation of the FinancingCompany under any such agreement, pledge or grant shall be effective until the Effective Time, (b) providing to the Lenders financial and other information in the Company’s possession in accordance with Section 6.5(a) and Section 6.5(b), including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated all financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) data of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 of type and form customarily included in private placements under Rule 144A of the Securities Act, to consummate the offerings of any debt securities contemplated by the Commitment Letters, (c) making the Company’s officers available to assist the Lenders (including audit reports by participating in a reasonable number of annual financial statements to meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies, and reasonably cooperating with the extent so required (which audit reports shall not be subject to any “going concern” qualificationsmarketing efforts of Parent and Acquisition Sub and such lenders), or (Bd) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation assisting with the Financing;
preparation of materials for rating agency presentations, offering documents, syndication documents (v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan including bank information memoranda, private placement memoranda, prospectuses and to references to such independent auditors as experts in any Marketing Material lender and registration statements investor presentations), business projections and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing similar documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos required in connection with the Financing and other documents required in connection with obtaining the Debt Financing, (provided that such logos are used solely e) obtaining legal opinions and issuing customary representation letters to auditors and using reasonable best efforts to (1) obtain accountants’ comfort letters and consents to the use of accountants’ reports relating to the Company, (2) assist the Parent and Acquisition Sub in a manner that is not intended to obtaining corporate, credit and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or facility ratings from rating agencies for the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three Debt Financing and (3) Business Days assist the Parent and Acquisition Sub in advance of obtaining other documentation and items contemplated by the Completion Date such Debt Commitment Letter or any definitive document relating to the Debt Financing as reasonably requested by Parent or Acquisition Sub, (f) furnishing all documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to Governmental Authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationU.S.A. Patriot Act of 2001, but in each case, solely as relating to the USA PATRIOT ACTCompany and its subsidiaries and to the extent requested in writing by any Lender no less than five (5) Business Days prior to the Effective Time, (g) arranging for documentation reasonably facilitating the pledging of collateral (including requesting customary payoff letters, releases, lien terminations, waivers, consents, estoppels, approvals as may be required in connection therewith and instruments of discharge) to be delivered at or prior to Merger Closing relating to all indebtedness to be paid off, discharged and terminated on the Merger Closing, (h) taking corporate actions reasonably necessary to permit the consummation of the Debt Financing and to permit the proceeds thereof to be made available to the Company by the Company and its subsidiaries, (i) cooperating reasonably with the Lenders’ due diligence, to the extent customary and reasonable and (j) otherwise reasonably cooperating in connection with the consummation of the Financing. Parent shall promptly reimburse the Company for any reasonable out-of-pocket expenses and costs incurred in connection with the Company’s or its affiliates’ obligations under this Section 6.13. Notwithstanding anything in this Agreement to the contrary in this Section 7.9(a) or Section 7.9(b) belowcontrary, (A) none of Allergan neither the Company nor any of its Subsidiaries subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other similar fee or enter into any definitive agreement or incur any other liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, obligation in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan Financing (or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (vany alternative financing) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesEffective Time.
Appears in 2 contracts
Sources: Merger Agreement (Steinway Musical Instruments Inc), Merger Agreement (Steinway Musical Instruments Inc)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsThe Company shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its and their respective officersRepresentatives to, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie Parent all cooperation that is necessary, customary or advisable and its Subsidiaries such assistance as may be reasonably requested by AbbVie Parent to assist Parent in writing that is customary arranging, obtaining and syndicating any debt or equity financing, including the Debt Financing, in connection with the arrangingtransactions contemplated by this Agreement (the “Financing”). Such cooperation shall include, obtaining and syndication without limitation:
(i) cooperating with customary marketing efforts of Parent for all or any portion of the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with causing the due diligencemanagement team, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority and expertise, including senior executive officers, external auditors and advisors, in each case of the Company and its Subsidiaries, to assist in preparation for and to participate in a reasonable number of meetings, presentations, road shows, drafting due diligence sessions, due diligence drafting sessions and sessions with prospective proposed lenders, investors and underwriters, initial purchasers, placement agents or rating agencies, at times ;
(ii) providing reasonable and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting timely assistance with AbbVie’s the preparation of customary materials for registration statementsrating agency presentations, road show materials, bank information memoranda, prospectuses and bank syndication materials, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations memoranda and similar documents customarily required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable typeFinancing, including all Historical Financial Statements the marketing and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable typesyndication thereof;
(iii) providing to AbbVie’s legal counsel furnishing Parent and its independent auditors such customary documents and other customary Financing Source Parties, promptly following Parent’s reasonable request, with all information relating to Allergan the Company and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating required to consummate the Financing, and using reasonable best efforts to assist Parent with Parent’s preparation of pro forma financial information and projections;
(iv) causing Allergan’s independent auditors using reasonable best efforts to provide customary cooperation assist Parent in obtaining corporate and facilities ratings in connection with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan furnishing Parent and to references to such independent auditors as experts its Financing Source Parties promptly, and in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating event at least five Business Days prior to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Closing Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least within ten (10) Business Days in advance of prior to the Completion Date in connection Closing Date), with all documentation and other information required by any Governmental Authority with respect to the Financing that relates to under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationthe PATRIOT Act;
(vi) assisting in preparing schedules in connection with any Financing as may be reasonably requested by Parent;
(vii) providing customary authorization letters authorizing the distribution of information to prospective lenders and containing a customary representation to the Financing Source Parties for the Financing that such information does not contain a material misstatement or omission and containing a representation to the Financing Source Parties that the public side versions of such documents, if any, do not include material non-public information about the USA PATRIOT ACT. Company and its Subsidiaries or its or their securities;
(viii) using reasonable best efforts to cause the Company’s independent accountants to provide assistance and cooperation to Parent, including using reasonable best efforts to cause their participation in drafting sessions and accounting due diligence sessions, using reasonable best efforts to cause them to agree that Parent may use their audit reports on the consolidated financial statements of the Company in any materials relating to the Financing or in connection with any filings made with the SEC or pursuant to applicable law, and using reasonable best efforts to cause them to provide any comfort letters necessary and reasonably requested by Parent in connection with any debt or equity capital markets transaction comprising a part of the Financing, in each case, on customary terms and consistent with their customary practice; and
(ix) as promptly as practicable on an ongoing basis, and in any event by the First Effective Time, (I) furnishing Parent and its Financing Source Parties with (A) U.S. GAAP audited consolidated balance sheets and related statements of earnings, comprehensive income, shareholders’ equity and cash flows of the Company, for the fiscal years ended December 31, 2015, December 31, 2014 and December 31, 2013 and for any subsequent fiscal year ended at least 60 days prior to the First Effective Time (and the audit reports for such financial statements shall not be subject to any “going concern” qualifications) and (B) U.S. GAAP unaudited consolidated balance sheets and related statements of earnings, comprehensive income and cash flows of the Company (in each case, except as permitted by the rules and regulations promulgated by the SEC and subject to normal year-end adjustments and absence of footnotes) for each subsequent fiscal quarter ended at least 40 days before the First Effective Time (it being understood and agreed that the timely filing of such financial statements on Form 10-K or Form 10-Q, as applicable, shall satisfy the requirements under the foregoing clause (I)(A) or (I)(B), as applicable, to the extent that the information included in such Form 10-K and Form 10-Q meets and continues to meet the requirements of the foregoing clause (I)(A) or (I)(B), as applicable); and (C) all other financial statements, financial data, audit reports and other information regarding the Company and its Subsidiaries as is necessary to prepare pro forma financial statements of Parent that shall meet the requirements of Regulation S-X and Regulation S-K under the 1933 Act to the extent applicable in a registration statement of the Parent’s securities under the 1933 Act on Form S-1 for the most recent period for which financial statements are required to be delivered pursuant to clause (I)(A) and (I)(B), and (II) using reasonable best efforts to furnish Parent and its Financing Source Parties (A) all other financial statements, financial data, audit reports and other information (other than information described in clause (I)) regarding the Company and its Subsidiaries of the type required by Regulation S-X and Regulation S-K under the 1933 Act for a registered public offering of debt or equity securities of Parent or as otherwise necessary to permit the Company’s independent accountants to issue “comfort letters” to Parent’s Financing Source Parties (which such accountants have confirmed they are prepared to issue), including as to customary negative assurances and change period in order to consummate any debt or equity capital markets transaction comprising a part of the Financing and (B) such other financial and other information relating to the Company and its Subsidiaries customary or reasonably necessary for the completion of such Financing to the extent reasonably requested by Parent to assist in preparation of customary offering or confidential information memoranda or otherwise to be used in connection with the marketing or consummation of the Financing.
(b) Notwithstanding anything to the contrary contained in this Section 7.9(a8.05: (i) or Section 7.9(b) below, (A) none of Allergan nor any of the Company and its Subsidiaries shall not be required to take or permit the taking of in connection with any action pursuant to this Section 7.9(a) or Section 7.9(b) below Financing to (iA) pay any commitment or other fee fees or incur reimburse any liability expenses prior to the Closing for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent, (B) take any action that would unreasonably interfere with the ongoing business or operations of the Company and its Subsidiaries, (C) require the Company, any of its Subsidiaries or any of their respective Representatives to take any action that conflicts with, or results in any violation or breach of, or default (with or without notice or lapse of time, or both) under, the organizational documents of the Company or its Subsidiaries, any applicable Laws, or any Company Material Contract, (D) provide any information subject to attorney-client privilege, attorney work product protection or other legal privilege, or (E) enter into or approve any agreement or other documentation (other than third-party costs delivery of customary authorization and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(crepresentation letters in connection with the Financing)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document agreement or instrument, in each case other documentation that would be effective prior to the Completion Date Closing, and (ii) no action, liability or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light obligation of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above)Company, (iii) provide access to or disclose information that Allergan its Subsidiaries, or any of its and their Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to the Financing (other than customary authorization and representation letters) shall be effective until (or not be contingent upon) the Closing.
(c) Parent shall (i) promptly upon request by the Company, reimburse the Company for all of its reasonable and documented out-of-pocket fees and expenses (including reasonable and documented out-of-pocket attorneys’ fees, but excluding the costs of the Company’s preparation of its annual and quarterly financial statements) incurred by the Company, its Subsidiaries reasonably determines would jeopardize or its or their Representatives in connection with any attorney-client privilege cooperation contemplated by this Section 8.05 and (ii) indemnify and hold harmless the Company, its Subsidiaries and its and their Representatives against any claim, loss, damage, injury, liability, judgment, award, penalty, fine, cost, settlement payment or expense incurred in connection with, or as a result of, the arrangement of Allergan the Financing, any Debt Transaction or their cooperation therewith and any information (other than information provided in writing by the Company, its Subsidiaries or any of its Subsidiaries (provided that Allergan shallor their Representatives) used in connection therewith, and shall cause except to the extent arising from any fraud, intentional misrepresentation, gross negligence, bad faith or willful misconduct of the Company, its Subsidiaries toor any of its or their Representatives.
(d) The Company hereby consents to the use of the trademarks and logos of the Company and its Subsidiaries in connection with the Financing; provided, use their respective reasonable best efforts to cause any that such information to be disclosed trademarks and logos are used solely in a manner that would is not result in intended to or reasonably likely to harm or disparage the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan Company or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication reputation or goodwill of the Financing will be in a form customary for use in the syndication Company or any of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesits Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (St Jude Medical Inc), Merger Agreement (Abbott Laboratories)
Financing Cooperation. (a) Until Subject to Section 7.14(b), (c) and (d), prior to the earlier of Closing Date, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries efforts to use its reasonable best effortsprovide, and shall use its reasonable best efforts to cause its Subsidiaries and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie its and its Subsidiaries Representatives to provide, at Parent’s sole cost and expense, to Parent such assistance cooperation as may reasonably be reasonably requested by AbbVie in writing that is customary Parent in connection with the arrangingDebt Financing including, obtaining and syndication of the Financingwithout limitation, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligenceparticipation, syndication or other marketing of the Financingupon reasonable advance notice, including using reasonable best efforts with respect to (A) the participation by members of senior management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road showssessions with rating agencies, drafting sessions, sessions and due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at in locations reasonably acceptable to Allergan and upon reasonable noticethe Company, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie Parent and its Representatives with all Financing Sources with historical Information and, to the extent reasonably available to the Company, other financial and other material information not otherwise available to Parent relating to the Company and its Subsidiaries, including any such customary information (collectivelycontemplated by the Debt Commitment Letter to be delivered after the date of this Agreement, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie necessary or its Financing Sources customary and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery the Debt Financing, in each case, as and when it becomes available (in the case of any customary negative assurance opinions the Financing Information, at the times required by the Debt Commitment Letter), (iii) reasonably assisting Parent and customary comfort letters its Financing Sources (to the extent relating to the Financing;
(ivCompany and its Subsidiaries) causing Allergan’s independent auditors in the preparation of customary rating agency presentations, syndication documents and materials, information memoranda, lender presentations and similar marketing documents to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used be used, in connection with the Debt Financing;
, including providing customary authorization letters related thereto, (iv) assisting in the preparation of definitive financing documents, as may be reasonably requested by Parent, (v) facilitating the pledging of collateral for the Debt Financing, (vi) obtaining Allergan’s independent auditors’ customary comfort letters using commercially reasonable efforts to obtain such material consents, approvals, authorizations and assistance instruments which may be reasonably requested by Parent in connection with the accounting Debt Financing and collateral arrangements, including, without limitation, customary payoff letters, releases of liens, instruments of termination or discharge, legal opinions, surveys and title insurance, (vii) using commercially reasonable efforts to ensure that the syndication efforts for the Debt Financing benefit from the Company’s existing lending and banking relationships, (viii) using commercially reasonable efforts in assisting Parent in its efforts to obtain corporate credit or family ratings of Parent, (ix) to the extent reasonably requested by Parent, subject to customary confidentiality agreements, cooperate with reasonable due diligence activities of requests from the Financing Sources;
(vii) causing , including as promptly as practicable after reasonable request thereof, furnishing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing Sources with reasonable documents or other information reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of Company and its Subsidiaries required by bank regulatory
A. Patriot Act of 2011, (x) obtaining a customary repayment notice, payoff letter and other customary payoff and release documentation and authorizations on or prior to the Closing Date of all obligations under the Company Credit Agreement; and (xi) using commercially reasonable efforts to cooperate with Parent to satisfy the conditions precedent to the Debt Financing to the extent reasonably requested by Parent and within the control of the Company and its Subsidiaries, and using commercially reasonable efforts to take all corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent to permit the consummation of the Debt Financing; provided, however, that, no obligation of the Company under any agreement, certificate, document or instrument shall be repaid or refinanced on effective until the Completion Closing. Without limiting the generality of the foregoing, the Company shall ensure that all financial and other projections concerning the Company and its Subsidiaries that are made available to Parent by the Company after the date of this Agreement and prior to the Closing are prepared in good faith and, prior to the earlier of the Closing Date and the release termination of related liens and/or guarantees this Agreement, the Company will use its reasonable best efforts to provide to Parent and its Financing Sources such information as may be necessary so that the Financing Information provided by the Company (if anyother than projections, budgets, estimates and other forward-looking information or information of a general economic or general industry nature) effected therebyis, including customary payoff letters when taken as a whole, complete and (correct in all material respects and does not and will not, taken as a whole, contain any untrue statement of a material fact or omit to state a material fact necessary to make the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtednessstatements contained therein, in each case in accordance with the terms light of the definitive documents governing circumstances under which such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring statements are made, not materially misleading. The Company consents to the reasonable use of all of Allergan’s its and its Subsidiaries’ logos in connection with the Financing (Debt Financing; provided that such logos are used solely in a manner that is not intended to to, and is not reasonably likely to harm or disparage Allergan the Company or any of its Subsidiaries or the reputation or goodwill of Allergan the Company, its Subsidiaries and its or their respective marks, products, services, offerings or intellectual property rights. Nothing contained in this Section 7.14 or otherwise shall require the Company or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicableClosing, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior Debt Financing. Notwithstanding anything to the Completioncontrary in this Agreement, the parties agree that the Tender Offer Condition set forth in clause (v)(d) of Annex A, as applied to the Company’s obligations under this Section 7.14(a), shall be deemed satisfied unless the Debt Financing has not been obtained as a direct and primary result of the Company’s Knowing and Intentional Breach of its obligations under Section 7.14(a) as determined in a final, non-appealable judgment of a court of competent jurisdiction.
(b) Parent shall promptly, upon request by the Company, reimburse the Company and its Subsidiaries, as applicable, for all reasonable out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or its Subsidiaries and their respective Representatives (collectively, the “Financing Indemnitees”) as applicable, in connection with the Debt Financing or the cooperation of the Financing Indemnitees, as applicable, contemplated by this Section 7.14. Parent shall indemnify and hold harmless the Financing Indemnitees from and against any and all losses, damages, claims, costs, expenses (including attorney’s fees), awards, judgments and penalties suffered or incurred by any of them in connection with the Debt Financing and any information used in connection therewith or providing the assistance contemplated by this Section 7.14, in each case except to the extent any of the foregoing arise from the Financing Indemnitees’ bad faith, fraud, intentional misrepresentation or willful misconduct, as finally determined by a court of competent jurisdiction (the obligations of Parent in this sentence, the “Financing Cooperation Indemnity”). The Financing Cooperation Indemnity shall survive the consummation of the Merger and any termination of this Agreement.
(c) Notwithstanding anything in this Agreement to the contrary, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (Cx) neither Allergan the Company nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (iA) unreasonably interfere unreasonably with the business or operations of Allergan the Company or any of its Subsidiaries, (iiB) cause any representation or warranty or covenant in this Agreement to be breached by Allergan the Company or any of its Subsidiaries (unless waived by AbbVie)or cause the Company or any of its Subsidiaries to become unable to satisfy any Tender Offer Condition, (iiiC) require the Company or any of its Subsidiaries or any of their respective Affiliates to pay (or agree to pay) any fees, or reimburse any expenses prior to the Closing for which it is not promptly reimbursed, or otherwise incur any other obligations or give any indemnities prior to the Closing that are not contingent on the Closing (D) cause any director, officer or officer, employee or shareholder stockholder of Allergan the Company or any of its Subsidiaries to incur any personal liability liability, (E) conflict with the organizational documents of the Company or any of its Subsidiaries or any applicable material Laws, (ivF) result in a material violation the contravention or breach of, or a default under, any material Contract to which Allergan the Company or any of its Subsidiaries is a party, (G) provide access to or disclose information that would jeopardize any attorney-client privilege of the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan Company or any of its Subsidiaries or that would be prohibited by applicable Law or legal proceeding, or (H) prepare separate financial statements for any Subsidiary of the Company or change any fiscal period or prepare any financial statements or information that are not available to it and prepared in the ordinary course of its financial reporting practice; (y) none of the Company, any of its Subsidiaries or any of their respective directors or officers shall be obligated to adopt resolutions or execute consents to approve or authorize the execution of the Debt Financing; provided that this clause (y) shall not prohibit the adoption or execution of any resolutions or consents effective no earlier than the Closing Date (after giving effect to the Closing) by any persons that shall remain or will become officers or directors of the Company or any of its Subsidiaries as of the Effective Time; and (z) any documentation executed by the Company of any of its Subsidiaries shall not become effective until the Effective Time.
(d) Parent acknowledges and agrees that, other than reasonable out–of–pocket costs and expense subject to reimbursement pursuant to this Section 7.14, neither the Company nor any of its Subsidiaries and Representatives shall have any responsibility for, or incur any liability to, any Person under, any Debt Financing that Parent may raise in connection with the transactions contemplated by this Agreement or any cooperation provided pursuant to this Section 7.14. All non–public or otherwise confidential information regarding the Company or any of its Affiliates and Subsidiaries obtained by Parent or its Affiliates or Representatives pursuant to this Section 7.9 to 7.14 shall be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality Agreement or customary confidential undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesDebt Financing.
Appears in 2 contracts
Sources: Merger Agreement (Qlogic Corp), Merger Agreement (Cavium, Inc.)
Financing Cooperation. (a) Until Prior to the earlier Effective Time, the Company shall, and shall cause each Company Subsidiary to, and shall use reasonable best efforts to cause its Representatives to, provide Buyer with all cooperation reasonably requested by Buyer to assist it in causing the conditions in the Commitment Letter to be satisfied or as is otherwise reasonably requested by Buyer in connection with the Debt Financing. Without limiting the generality of the Completion foregoing and subject to the valid termination of this Agreement pursuant to and limitations set forth in accordance with Article 9Section 6.15(b), Allergan shall use its reasonable best effortsthe Company shall, and shall cause each of its the Company Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its Representatives to:
(i) furnish Buyer and their respective officers, employees the Financing Sources with the Required Information and advisors all other financial and other Representatives, including legal pertinent information and accounting advisors, to use their reasonable best efforts, to provide to AbbVie disclosures regarding the Company and its the Company Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary Buyer or the Financing Sources for use in connection with the arranging, obtaining and syndication of the Debt Financing, including using reasonable best efforts with respect to:in each case, prior to February 1, 2018;
(iii) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using participate at reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority times in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering including sessions with prospective lenders and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”rating agencies) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection otherwise cooperating with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, marketing efforts for the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable typeDebt Financing;
(iii) providing to AbbVie’s legal counsel and its independent auditors such assist with the preparation of customary documents rating agency presentations, confidential information memoranda and other similar documents in connection with the Debt Financing (including requesting customary information consents of accountants for use of their reports in any materials relating to Allergan the Debt Financing and its Subsidiaries the delivery of one or more customary representation letters and/or customary authorization letters authorizing the distribution of information to prospective lenders or investors and containing customary representations and warranties to the Financing Sources under the Commitment Letters, including with respect to the presence or absence of material non-public information and the accuracy of the written information contained in the disclosure and marketing materials related to the Debt Financing);
(iv) provide reasonable cooperation with the pledging of collateral in connection with the Debt Financing as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed by Buyer or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(viiv) causing assist Buyer in connection with the Financing to benefit from the existing lender relationships preparation and registration of Allergan any pledge and its Subsidiaries;
(viii) providing security documents and other definitive financing documents as may be reasonably requested request by AbbVie Buyer or the Financing Sources relating to and otherwise reasonably facilitating the repayment or refinancing pledging of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date collateral and the release granting of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, security interests in each case in accordance with the terms respect of the definitive Debt Financing, it being understood that such documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on will not take effect until the Completion)Effective Time;
(ixvi) procuring consents take such actions as are reasonably necessary to permit the Financing Sources to evaluate the Company’s and the Company Subsidiaries’ inventory, current assets, cash management and accounting systems, and policies and procedures relating thereto for the purpose of establishing collateral arrangements required to be established as of the Closing under the Commitment Letter;
(vii) if requested by Buyer or a Financing Source at least ten days prior to the reasonable use of all of Allergan’s logos in connection with Closing Date, provide Buyer and the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing Sources at least three (3) Business Days in advance of prior to the Completion Date such Closing Date, with all documentation and other information about Allergan with respect to the Company and its the Company Subsidiaries as is which Buyer or the Financing Source have reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything Patriot Act;
(viii) provide reasonable assistance in obtaining any consents of third parties necessary in connection with the Debt Financing;
(ix) delivering notices of prepayment within the time periods required by the relevant agreements governing any Company Indebtedness described on Section 7.1(c) of the Disclosure Schedule and obtaining customary payoff letters, lien terminations and instruments of discharge to be delivered at the contrary Closing, and giving any other necessary notices, to allow for the payoff, discharge and termination in this full at the Closing of all Company Indebtedness described on Section 7.9(a7.1(c) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment Disclosure Schedule or other fee or incur any liability (other than third-party costs and expenses that are Indebtedness required by the Commitment Letter to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except terminated;
(x) provide Buyer with such information to assist in the preparation of the pro forma financial statements identified in clause (vii) of Exhibit B of the Commitment Letter and other pro forma financial information and pro forma financial statements to the extent required by Section 7.9(b)the Financing Sources, applicable Allergan Supplemental Indenturesit being agreed that the Company will not be required to provide any information or assistance relating to (A) the proposed aggregate amount of the Debt Financing, (y) customary officers’ certificates together with assumed interest rates and fees and expenses relating to the execution thereof incurrence of the Debt Financing or (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;
(xi) cooperate in the replacement or backstop of any outstanding letters of credit issued for the account of the Company or any of the Company Subsidiaries
(xii) promptly after gaining knowledge thereof, supplementing the written information concerning the Company and the Company Subsidiaries furnished pursuant to this Section 6.14 to the extent that would any such information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein not conflict with applicable Law and would be accurate materially misleading in light of the facts circumstances under which such statements were made; and
(xiii) take all corporate and circumstances at other actions, subject to the time delivered occurrence of the Closing, reasonably requested by Buyer to (1) permit the consummation of the Debt Financing, and (z2) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except facilitate the execution and delivery of definitive documents related to the Debt Financing on terms specified by the Commitment Letter to the extent required to be delivered as of Closing.
(b) Notwithstanding the provisions of this Section 6.15 or any applicable Allergan Supplemental Indentures)other provision of this Agreement, and (C) neither Allergan nor nothing in this Agreement will require the Company or any of its the Company Subsidiaries shall be required to (i) waive or amend any terms of this Agreement or agree to pay any fees or reimburse any expenses prior to the Effective Time for which it has not received prior reimbursement from Buyer, (ii) enter into any definitive agreement (other than, for the avoidance of doubt, the customary representation letters described in Section 6.15(a)(iii)) that is effective prior to the Effective Time, (iii) give any indemnities that are effective prior to the Effective Time, (iv) take or permit the taking of any action that would (i) unreasonably interfere unreasonably with the business or ongoing operations of Allergan the Company or its Subsidiariesthe Company Subsidiaries or result in material damage to, (ii) cause or the destruction of, any representation material property or warranty in this Agreement to be breached by Allergan assets of the Company or any of the Company Subsidiaries or (v) provide any information or take any action that will conflict with or violate its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan organizational documents or any of its Subsidiaries to incur any personal liability applicable Law or (iv) would result in a material violation or breach of, or a default under, any material Contract contract to which Allergan the Company or any of its Subsidiaries is a party. In addition, no action, liability or obligation of the Organizational Documents Company, any of Allergan or its the Company Subsidiaries or any applicable Lawof their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to the Debt Financing will be effective until the Effective Time. AbbVie shall cause all Nothing in this Agreement will require any officer or Representative of the Company or any of the Company Subsidiaries to deliver any certificate or opinion or take any other action pursuant to this Section 6.14 or any other provision of this Agreement that would reasonably be expected to result in personal liability to such officer or Representative.
(c) All non-public or other confidential information provided by or on behalf of Allergan the Company or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to Agreement will be kept confidential in accordance with the Confidentiality Agreement; provided, except that Allergan acknowledges and agrees that the confidentiality undertakings that Buyer will be obtained permitted to disclose such information (i) as is legally required to be disclosed in any offering documents related to the Debt Financing or (ii) to any Financing Sources or prospective financing sources, rating agencies and other financial institutions and investors that are or may become parties to such financing and to any agents, arrangers or bookrunners in connection with syndication such financing (and, in each case, to their respective counsel and auditors) so long as such persons (a) agree to be bound by the Confidentiality Agreement as if parties thereto and (b) are subject to other confidentiality undertakings customary for financings of the same type as the Debt Financing.
(d) Buyer agrees to (i) indemnify, defend and hold harmless the Company, the Company Subsidiaries and their respective Representatives from and against any loss, damages, claim, cost, liability, obligation or expense suffered or incurred in connection with the Debt Financing, any arrangement thereof and any information provided in connection therewith except (A) historical information relating thereto or other information furnished in writing by or on behalf of the Company and the Company Subsidiaries for use therein or in connection therewith and (B) to the extent arising from the willful misconduct, gross negligence, fraud or intentional misrepresentation of the Company, the Company Subsidiaries or their respective Representatives and (ii) promptly, upon request of the Company, reimburse the Company and the Company Subsidiaries for all reasonable and documented out-of-pocket costs incurred by the Company or the Company Subsidiaries in connection with this Section 6.15.
(e) The Company hereby consents to the use of all logos of the Company and the Company Subsidiaries in connection with the Debt Financing will be so long as such logos (i) are used solely in a form customary for use in manner that is not intended to or likely to harm or disparage the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements Company or any of the Panel Company Subsidiaries or the reputation or goodwill of the Company or any of the Company Subsidiaries and (ii) are used solely in connection with a description of the Takeover RulesCompany, its business and products or the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Shutterfly Inc)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan The Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and each of them shall use its their reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, Representatives to use their reasonable best efforts, to provide customary cooperation, to AbbVie and its Subsidiaries such assistance as may be the extent reasonably requested by AbbVie Parent in writing that is customary writing, in connection with the arrangingoffering, obtaining and syndication arrangement, syndication, consummation, issuance or sale of any Debt Financing or Alternative Financing obtained in accordance with Section 5.13 (provided, that such requested cooperation does not unreasonably interfere with the ongoing operations of the FinancingCompany or any of its Affiliates), including including, to the extent so requested, using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect furnish promptly to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with Parent the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmationsInformation, and undertakings in connection with such other financial information regarding the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan Company and its Subsidiaries as is reasonably requested by AbbVie or Parent in connection with the Debt Financing;
(ii) assist Parent in its Financing Sources and customarily required in Marketing Material for Financings preparation of the applicable type, including all Historical Financial Statements and other customary pro forma financial information identified in paragraph 4 of Annex D to the Debt Commitment Letters with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable typeParent;
(iii) providing provide reasonable and customary assistance to AbbVie’s legal counsel Parent and its independent auditors such the Financing Parties in the preparation of (A) customary offering documents, offering memoranda, offering circulars, private placement memoranda, registration statements, prospectuses, syndication documents and other syndication materials, including information memoranda, lender and investor presentations, bank books and other marketing documents, and similar documents for any portion of the Debt Financing and (B) materials for rating agency presentations;
(iv) make senior management of the Company available, at reasonable times and locations and upon reasonable prior notice, to participate in meetings (including one-on-one conference or virtual calls with Financing Parties and potential Financing Parties), drafting sessions, presentations, road shows, rating agency presentations and due diligence sessions and other customary syndication activities, provided, at the Company’s option in consultation with Parent, any such meeting or communication may be conducted virtually by videoconference or other media;
(v) cause the Company’s independent registered accounting firm to provide customary assistance, including by using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary comfort letters (including “negative assurance” comfort, if customary and appropriate) in connection with any capital markets transaction comprising a part of the Debt Financing to the applicable Financing Parties and to participate in a reasonable number of due diligence sessions; provided, at the Company’s option, any such session may be conducted virtually by videoconference or other media, and including by using reasonable best efforts to provide customary representation letters to the extent required by such independent registered accounting firm in connection with the foregoing;
(vi) provide customary authorization letters authorizing the distribution of Company information relating to Allergan prospective lenders in connection with a syndicated bank financing;
(vii) assist in obtaining or updating corporate and its Subsidiaries facility credit ratings;
(viii) assist in the negotiation and preparation of any credit agreement, indenture, note, purchase agreement, underwriting agreement, guarantees and customary closing certificates, as may be reasonably requested by Parent, in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors each case as experts in any Marketing Material and registration statements and related government filings filed or used contemplated in connection with the Debt Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents make introductions of Parent to the reasonable use Company’s existing lenders and facilitate relevant coordination between Parent and such lenders;
(x) cooperate with internal and external counsel of all of Allergan’s logos Parent in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); andDebt Financing;
(xxi) providing deliver, at least three (3) Business Days prior to Closing, to the extent reasonably requested in advance of the Completion Date such writing at least nine Business Days prior to Closing, all documentation and other information about Allergan regarding the Company and its Subsidiaries as that any Financing Party reasonably determines is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything Patriot Act of 2001, and, to the contrary extent required by any Financing Party, a beneficial ownership certificate (substantially similar in this Section 7.9(aform and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association) in respect of any of the Company or Section 7.9(bany of its Subsidiaries that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation (31 C.F.R. § 1010.230);
(xii) belowat Parent’s written request, cooperate with and use reasonable best efforts to provide all reasonable assistance to Parent in connection with any steps Parent may determine are necessary or desirable to take to (A) obtain consent for the Change of Control under and as defined in the Company Credit Agreement arising from consummation of the transactions contemplated by this Agreement, including facilitating and participating in communications with lenders under the Company Credit Agreement in relation to a Change of Control amendment request; provided that any such documentation prepared by the Company, its Subsidiaries and Representatives in connection with the foregoing shall be reasonably acceptable to Parent, and/or (B) prepay some or all amounts outstanding under the Company Credit Agreement, including (1) using reasonable best efforts to prepare and submit customary notices in respect of any such prepayment provided that such prepayment shall be contingent upon the occurrence of the Closing unless otherwise agreed in writing by the Company, and (2) using reasonable best efforts to obtain from the Company Credit Agreement agent a customary payoff letter in respect of the Company Credit Agreement;
(xiii) at Parent’s written request, cooperate with and use reasonable best efforts to provide all reasonable assistance to Parent in connection with any amendments to (A) the Financing Agreement, dated as of February 21, 2012, between The Kansas City Southern Railway Company and the United States of America, represented by the Secretary of Transportation acting through the Administrator of the Federal Railroad Administration and (B) the Financing Agreement, dated as of June 28, 2005, between Texas Mexican Railway Company and the United States of America, represented by the Secretary of Transportation acting through Administrator of the Federal Railroad Administration;
(xiv) on the Closing Date but immediately following the Closing, at Parent’s request (which may be prior to the Closing Date), execute such documentation as is reasonably requested so that the Company can assume the Debt Commitment Letters in respect of the Company Credit Agreement (to the extent the debt commitments thereunder have not been terminated at Closing in accordance with their terms); and
(xv) consent to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor reasonably likely to, harm or disparage the Company or its Subsidiaries or the Company’s or its Subsidiaries’ reputation or goodwill.
(b) The foregoing notwithstanding, none of Allergan the Company nor any of its Subsidiaries Affiliates shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to 5.12 that would: (i) pay require the Company or its Subsidiaries or any commitment of their respective Affiliates or other fee any persons who are officers or incur any liability (other than third-party costs and expenses that are directors of such entities to be promptly reimbursed by AbbVie upon request by Allergan pursuant pass resolutions or consents to Section 7.9(c))approve or authorize the execution of the Debt Financing or enter into, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document document, instrument or instrument, agreement or agree to any change to or modification of any existing agreement, certificate, document document, instrument or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur agreement (except (x) to for the extent required authorization letters contemplated by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered5.12(a)(vi)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan the Company or any of its Subsidiaries (unless waived by AbbVie)Affiliates, (iii) require the Company or any of its Affiliates to (x) pay any commitment or other similar fee or (y) incur any other expense, liability or obligation which expense, liability or obligation is not reimbursed or indemnified hereunder in connection with the Debt Financing prior to the Closing, or (z) have any obligation of the Company or any of its Affiliates under any agreement, certificate, document or instrument be effective until the Closing, (iv) cause any director, officer or officer, employee or shareholder stockholder of Allergan the Company or any of its Subsidiaries Affiliates to incur any personal liability liability, (v) conflict with the Organizational Documents of the Company or any of its Affiliates or any Laws, (ivvi) reasonably be expected to result in a material violation or material breach of, or a default (with or without notice, lapse of time, or both) under, any material Contract to which Allergan the Company or any of its Subsidiaries Affiliates is a partyparty (other than the Change of Control under and as defined in the Company Credit Agreement resulting from the consummation of the Merger), (vii) provide access to or disclose information that the Company or any of its Affiliates determines would jeopardize any attorney-client privilege or other applicable privilege or protection of the Company or any of its Affiliates, (viii) require the Company to prepare any financial statements or information (other than the Financing Information) that are not available to it and prepared in the ordinary course of its financial reporting practice, or (ix) require the Company to prepare or deliver any Excluded Information. Nothing contained in this Section 5.12 or otherwise shall require the Company or any of its Affiliates, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing. Parent shall, promptly on request by the Company, reimburse the Company or any of its Affiliates for all reasonable out-of-pocket costs incurred by them or their respective representatives in connection with such cooperation and shall indemnify and hold harmless the Company and its Affiliates and their respective representatives from and against any and all losses suffered or incurred by them in connection with the arrangement of the Debt Financing, any action taken by them at the request of Parent or its representatives pursuant to this Section 5.12 and any information used in connection therewith.
(c) The parties hereto acknowledge and agree that the provisions contained in this Section 5.12 represent the sole obligation of the Company and its Subsidiaries with respect to cooperation in connection with the arrangement of any financing (including the Debt Financing) to be obtained by Parent with respect to the transactions contemplated by this Agreement, and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or modify such obligations. In no event shall the receipt or availability of any funds or financing (including the Debt Financing) by Parent any of its Affiliates or any other financing or other transactions be a condition to any of Parent’s obligations under this Agreement. Notwithstanding anything to the contrary in this Agreement, the Organizational Documents Company’s breach of Allergan or its Subsidiaries or any applicable Law. AbbVie of the covenants required to be performed by it under this Section 5.12 shall not be considered in determining the satisfaction of the condition set forth in Section 6.3(b), unless such breach is the primary cause all of Parent being unable to obtain the proceeds of the Debt Financing at the Closing.
(d) All non-public or other otherwise confidential information provided by or on behalf of Allergan regarding the Company or any of its Subsidiaries Affiliates obtained by Parent or Representatives its representatives pursuant to this Section 7.9 to 5.12 shall be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges Parent shall be permitted to disclose such information to (i) the Financing Parties subject to their confidentiality obligations under the Debt Commitment Letters and agrees that the confidentiality undertakings that will be obtained definitive documentation evidencing the Debt Financing and (ii) otherwise to the extent necessary and consistent with customary practices in connection with syndication of the Debt Financing will be in a form subject to customary for use in confidentiality arrangements reasonably satisfactory to the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesCompany.
Appears in 2 contracts
Sources: Merger Agreement (Canadian National Railway Co), Merger Agreement (Kansas City Southern)
Financing Cooperation. (a) Until From the earlier of date hereof until the Completion and Closing Date, the valid termination of this Agreement pursuant to and in accordance with Article 9Company shall provide, Allergan shall use its reasonable best efforts, and shall cause each of its the Company Subsidiaries to use its reasonable best effortsprovide, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisorsRepresentatives to provide, to use their reasonable best efforts, to provide to AbbVie Parent and its Subsidiaries such assistance as may be Acquisition Sub all cooperation reasonably requested by AbbVie in writing that is customary Parent and Acquisition Sub in connection with the arrangingconsummation, obtaining arrangement, marketing and syndication of the Debt Financing or any replacement, amended, modified or alternative financing permitted by this Agreement (collectively with the Debt Financing, the “Available Financing”), including by using its reasonable best efforts with respect to:
(i) participating in promptly upon request by Parent, to furnish Parent and assisting with Acquisition Sub the due diligence, syndication or Required Financial Information and such other marketing financial information other pertinent information and disclosures regarding the Company and the Company Subsidiaries as may be available to Company and customary and necessary to permit the consummation of the Available Financing, including using (ii) to participate, in each case upon reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority notice, at agreed times and places, in a reasonable number of meetingsmeetings (including one-on-one meetings or conference calls) with parties acting as agents or arrangers for, and prospective lenders of, the Available Financing for the Transactions, presentations, road shows, drafting due diligence sessions, due diligence drafting sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan cooperate with the marketing or solicitation efforts of Parent and upon reasonable noticeAcquisition Sub and their financing sources, in each case as reasonably requested by Parent and Acquisition Sub and reasonably required in connection with the Available Financing, (Biii) assisting as reasonably requested by Parent, to assist Parent with AbbVie’s the preparation of customary materials for registration statementsrating agency presentations, marketing materials, offering documentsmemoranda and bank information memoranda (including with respect to presence of absence of material non-public information relating to the Company and the Company Subsidiaries and the accuracy of the information relating to the Company and the Company Subsidiaries contained therein), lender presentations and offering documents in connection with the Debt Financing, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations prospectuses and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related theretoAvailable Financing, (Civ) delivering and consenting to the inclusion if reasonably requested by Parent or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings Acquisition Sub in connection with the Marketing Material (in each case, as applicable, Available Financing and subject to Parent and Acquisition Sub providing funds necessary to repay amounts outstanding under the Credit Agreement (and cash collateralizing all letters outstanding thereunder) as of the Effective Time, (A) to obtain and provide to Parent a customary confidentiality provisions payoff letter(subject to and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectivelyconditioned upon, or to be executed upon, the “Financing Information”Closing) with respect to Allergan the Credit Agreement, and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of provide by the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents Closing Date all documentation and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used required in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Available Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulationsregulations and requested from the Company in writing at least five (5) business days prior to the Closing Date, including without limitation(v) to assist in the preparation and execution of any customary credit agreements (or amendments thereto), pledge and security documents, guarantees, indentures, purchase agreements, and other customary definitive documentation relating to the USA PATRIOT ACT. Notwithstanding Available Financing, (vi) to facilitate the granting of a security interest (and perfection thereof) in collateral owned by the Company and the Company Subsidiaries; provided, however, that notwithstanding anything to the contrary in this Section 7.9(a7.14 (including clauses (v) and (vi) of this clause (a)) no obligation of the Company or Section 7.9(bany of the Company Subsidiaries under any agreement, certificate, document or instrument (and no security interest in any assets of the Company or any of the Company Subsidiaries) belowexecuted in connection with the Available Financing shall be effective until the Closing, and (Avii) none upon the reasonable request of Allergan Parent and Acquisition Sub, to assist Parent and Acquisition Sub in obtaining customary accountant’s comfort letters customary for financings similar to the Available Financing.
(b) Notwithstanding the foregoing, neither the Company nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action 7.14 that would (i) interfere unreasonably with contravene any applicable Law or require the business Company or operations any of Allergan the Company Subsidiaries to disclose information subject to any attorney-client, attorney work product or other legal privilege (provided, however, that the Company shall use its Subsidiariesreasonable best efforts to allow for such access or disclosure to the maximum extent that does not result in a loss of any such attorney-client, attorney work product or other legal privilege), (ii) cause any covenant, representation or warranty in this Agreement to be breached by Allergan the Company or any of the Company Subsidiaries, (iii) require the Company or any of its Subsidiaries to pay any commitment or other fee or incur any other expense (unless waived by AbbVieexcept to the extent Parent promptly reimburses such expense), liability or obligation in connection with the Available Financing prior to the Closing, (iiiiv) cause any director, officer or employee or shareholder stockholder of Allergan the Company or any of its the Company Subsidiaries to incur any personal liability liability, (v) require the Company, the Company Subsidiaries or any Persons who are directors of the Company or the Company Subsidiaries to pass resolutions or consents to approve or authorize the execution of the Available Financing, (ivvi) result require the Company, the Company Subsidiaries or any Persons who are officers of the Company or the Company Subsidiaries to execute or deliver any certificate, document, instrument or agreement or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Closing (provided that in a material violation or breach of, or a default under, any material Contract to which Allergan no event shall this Section 7.14 require the Company or any of the Company Subsidiaries to cause any officer of the Company or any Company Subsidiary that is not continuing in such capacity after the Closing to execute any certificate, document, instrument or agreement), (vii) cause any director, officer, or employee or stockholder of the Company or any Company Subsidiary to incur any personal liability, or (viii) unreasonably interfere with the business of the Company and the Company Subsidiaries. Nothing in this Section 7.14 or otherwise shall require the Company or any of the Company Subsidiaries, prior to the Closing, to be an issuer or other obligor with respect to any of the Available Financing. The Company hereby consents to the reasonable use of its and the Company Subsidiaries’ logos in connection with the Available Financing; provided, that such logos shall be used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect the Company or any of the Company Subsidiaries.
(c) Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs incurred by the Company or the Company Subsidiaries is a partyor their respective Representatives in connection with such cooperation pursuant to this Section 7.14 and shall indemnify and hold harmless the Company and the Company Subsidiaries and their respective Representatives from and against any and all losses suffered or incurred by them in connection with the arrangement of the Available Financing, any action taken by them at the request of Parent or Acquisition Sub pursuant to this Section 7.14, and any information used in connection therewith (other than information provided in writing by the Company or the Company Subsidiaries specifically in connection with its obligations pursuant to this Section 7.14).
(d) For the avoidance of doubt, the Organizational Documents parties hereto acknowledge and agree that the provisions contained in this Section 7.14 represent the sole obligation of Allergan the Company, the Company Subsidiaries and their respective Representatives with respect to cooperation in connection with the arrangement of any financing (including any Available Financing) to be obtained by Parent or its Subsidiaries Acquisition Sub with respect to the Transactions and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or any applicable Law. AbbVie shall cause all modify such obligations.
(e) All non-public or other otherwise confidential information provided regarding the Company or its Subsidiaries obtained by or on behalf of Allergan Parent, Acquisition Sub, or any of its Subsidiaries or their respective Representatives pursuant to this Section 7.9 to 7.14 shall be kept confidential in accordance with the Confidentiality Agreement; provided. Notwithstanding the foregoing or anything to the contrary contained herein or in the Confidentiality Agreement, that Allergan acknowledges Parent and agrees the Company, as the parties to the Confidentiality Agreement, hereby agree that the confidentiality undertakings that will sharing of such confidential information with, and the use of such information by, the Debt Providers shall be obtained in connection with syndication of permitted subject to the Financing will be in a form customary for use terms set forth in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesDebt Commitment Letter so long as such information is disclosed subject to customary confidentiality arrangements.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Fairchild Semiconductor International Inc), Agreement and Plan of Merger (On Semiconductor Corp)
Financing Cooperation. (a) Until Subject to Section 7.13(b) and (c), prior to the earlier of Closing, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Company shall use its reasonable best efforts, and shall cause each of its Subsidiaries efforts to use its reasonable best effortsprovide, and shall use its reasonable best efforts to cause its Subsidiaries and their respective officers, employees employees, consultants and advisors and other Representativesadvisors, including legal and accounting advisorsadvisors to, provide, at Parent’s sole cost and expense, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance Parent all cooperation as may be reasonably requested by AbbVie in writing that is customary Parent in connection with the arranging, obtaining and syndication of the Debt Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of senior management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, and due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations mutually agreed and reasonably acceptable to Allergan and upon reasonable noticecoordinated in advance thereof, (Bii) reasonably assisting with AbbVie’s the preparation of customary materials (to the extent relating to the Company and its Subsidiaries) for registration statementsrating agency presentations, information and offering documents, private placement memoranda, bank information memorandalender presentations, prospectuses, rating agency presentations and similar marketing documents required to be used in connection with the Financing (collectivelyDebt Financing, “Marketing Material”) including customary comfort and due diligence sessions related theretoauthorization letters, (C) delivering and consenting to the inclusion or incorporation in any SEC filing such information and data related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan Company and its Subsidiaries as is reasonably requested required by AbbVie Parent for Parent to produce the financial statements and information identified in paragraph 6 of Exhibit C of the Debt Commitment Letter or its Financing Sources and customarily otherwise required in Marketing Material for Financings of connection with the applicable typeDebt Financing, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries assisting in the preparation of definitive financing documents, as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
by Parent, (iv) causing Allergan’s independent auditors to provide customary cooperation with facilitating the pledging of collateral for the Debt Financing;
, (v) obtaining customary payoff letters, lien terminations and instruments of discharge in respect of the consents of Allergan’s independent auditors to use their audit reports payoff, discharge and termination on the audited Historical Financial Statements Closing Date of Allergan and to references to such independent auditors all obligations under the Company Credit Agreement, including releases of liens relating thereto, in each case as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
reasonably requested by Parent, (vi) obtaining Allerganusing commercially reasonable efforts to ensure that the syndication efforts for the Debt Financing benefit from the Company’s independent auditors’ customary comfort letters existing lending and assistance with the accounting due diligence activities of the Financing Sources;
banking relationships, (vii) causing using commercially reasonable efforts in assisting Parent in its efforts to obtain corporate credit or family ratings of Parent to the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
extent reasonably requested by Parent, (viii) providing as promptly as practicable after reasonable request therefor, furnishing the Financing Sources with reasonable documents or other information reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan Company and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection bank regulatory authorities with respect to the Financing that relates to under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationthe U.S.A. Patriot Act of 2011 and (ix) cooperating with Parent to satisfy the conditions precedent to the Debt Financing to the extent reasonably requested by Parent and within the control of the Company and its Subsidiaries, and taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent to permit the consummation of the Debt Financing and taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent to permit the consummation of the Debt Financing. Without limiting the generality of the foregoing, the USA PATRIOT ACTCompany shall ensure that all financial and other projections concerning the Company and its Subsidiaries that are made available to Parent after the date of this Agreement are prepared in good faith. The Company consents to the use of its logos in connection with the Debt Financing; provided that such logos shall be used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect the Company or any of its Subsidiaries.
(b) Notwithstanding anything in this Agreement to the contrary in this Section 7.9(a) or Section 7.9(b) belowcontrary, (Ax) none of Allergan neither the Company nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(athe extent it would (1) interfere unreasonably with the business or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents operations of the Company or any other agreement, certificate, document of its Subsidiaries (2) require the Company or instrument, any of its Subsidiaries or any of their respective Affiliates to pay (or agree to pay) any change to fees, or modification of reimburse any existing agreement, certificate, document or instrument, in each case that would be effective expenses prior to the Completion Date Closing for which it is not promptly reimbursed, or would be effective if the Completion does not occur (except (x) otherwise incur any other obligations or give any indemnities prior to the extent required by Section 7.9(b), applicable Allergan Supplemental IndenturesClosing that are not contingent on the Closing, (y3) customary officers’ certificates relating cause any representation or warranty or covenant in this Agreement to be breached by the execution thereof that would not Company or any of its Subsidiaries, (4) cause any director, officer or employee of the Company or any of its Subsidiaries to incur any personal liability, (5) conflict with applicable Law and would be accurate in light the organizational documents of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above)Company or any of its Subsidiaries or any Laws, (iii6) result in the contravention or breach of, or default under, any Material Contract, (7) provide access to or disclose information that Allergan the Company or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan the Company or any of its Subsidiaries, or (8) prepare separate financial statements for any Subsidiary of the Company or change any fiscal period; or (y) none of the Company, any of its Subsidiaries or any of their respective directors or officers shall be obligated to adopt resolutions or execute consents to approve or authorize the execution of the Debt Financing; provided that this clause (y) shall not prohibit the adoption or execution of any resolutions or consents effective no earlier than the Closing Date by any persons that shall remain or will become officers or directors of the Company or any of its Subsidiaries as of the Effective Time; and (provided that Allergan shall, and shall cause z) any documentation executed by the Company of any of its Subsidiaries toshall not become effective until the Effective Time. Parent shall (1) promptly upon request by the Company, use reimburse the Company for all reasonable out-of-pocket costs and expenses (including attorney’s fees) incurred by the Company or any of its Subsidiaries and their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege)Representatives, (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (exceptas applicable, in connection with the entry into an Allergan Supplemental Indenture required Debt Financing and providing the assistance contemplated by this Section 7.9(b7.13 and (2) indemnify and hold harmless the Company and its Subsidiaries and its and their respective Representatives (collectively, the “Financing Indemnitees”) from and against any and all liabilities, losses, damages, claims, costs, expenses (including attorney’s fees), Allergan shallawards, judgments and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan penalties suffered or its Subsidiaries, as applicable, to deliver a customary opinion incurred by any of counsel to them in connection with the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan Debt Financing and any information used in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate or providing the assistance contemplated by this Section 7.13, in light each case other than to the extent any of the facts and circumstances at foregoing arises from the time delivered)fraud, intentional misrepresentation or willful misconduct of such Financing Indemnitee, as finally determined by a court of competent jurisdiction (the obligations of Parent in this clause (2), (v) be an issuer or other obligor with respect to the “Financing prior to Cooperation Indemnity”). The Financing Cooperation Indemnity shall survive the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none consummation of the Allergan Board, officers Merger and any termination of Allergan, this Agreement.
(c) All non-public or directors and officers of otherwise confidential information regarding the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan Company or any of its Affiliates and Subsidiaries (unless waived obtained by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan Parent or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries Affiliates or Representatives pursuant to this Section 7.9 to 7.13 shall be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules.
Appears in 2 contracts
Sources: Merger Agreement (Microsemi Corp), Merger Agreement (PMC Sierra Inc)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and The Company shall use its reasonable best efforts to provide, and to cause its Subsidiaries and each of their respective officers, employees and advisors and other Representatives, including legal and accounting advisorsRepresentatives to provide, to use their Parent and Purchaser, reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as cooperation that may be reasonably requested by AbbVie in writing Parent and Purchaser and that is customary necessary or customary, proper or advisable in connection with the arrangingarrangement of any loan transaction or capital markets debt financing (whether public or private) undertaken by Parent in contemplation of the consummation of the Transaction (any such financing, obtaining the “Financing”), including reasonable cooperation, in each case to the extent reasonably requested: (i) to provide, within a reasonable amount of time following such reasonable request, to Parent, Purchaser and syndication their Financing Sources material financial and other pertinent information with respect to the Company and its Subsidiaries and the Transactions, including information and projections prepared by the Company relating to the Acquired Corporations required in connection with the preparation of the Finance Offering Documents and diligence documentation reasonably requested by persons in connection with the Financing; (ii) to cooperate with the marketing efforts of Parent, Purchaser and their Financing Sources for any of the Financing, including using causing its Representatives to participate, during normal working hours and upon reasonable best efforts with respect to:
(i) participating notice, in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable a reasonable number of times; (iii) to Allergan and upon reasonable notice, (B) assisting assist with AbbVie’s the preparation of customary materials relating to the Acquired Corporations for registration statementsrating agency presentations, lender presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency road show presentations and similar documents required (including assisting with the preparation of pro forma financial statements meeting the requirements of SEC Regulation S-X) necessary, proper or advisable in connection with the Financing (collectively, the “Marketing MaterialFinance Offering Documents”); (iv) and due diligence sessions related thereto, (C) delivering and consenting to assist Parent in obtaining consents of the inclusion or incorporation Company’s auditors for use of their reports in any SEC filing related materials relating to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents customary “comfort letters” (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions assurances and customary comfort “bring-down” letters relating to from the Financing;
(iv) causing AllerganCompany’s independent auditors to provide accountants on customary cooperation with the Financing;
terms); and (v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of provide all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to required under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACTAct. Notwithstanding anything the foregoing, (i) no obligation of the Company or its Subsidiaries under any certificate, document or instrument executed pursuant to the contrary foregoing shall be effective until the Offer Acceptance Time (or such later time set forth in this Section 7.9(asuch certificate, document or instrument), and neither the Company nor its Subsidiaries nor any of their respective Representatives shall be required to take any action under any such certificate, document or instrument that is not contingent upon the consummation of the Offer (including the entry into any agreement that is effective before consummation of the Offer) or Section 7.9(b) belowthat would be effective prior thereto or take any corporate actions prior to the Closing, (Aii) none nothing herein shall require cooperation to the extent that such cooperation would, in the good faith determination of Allergan the Company, interfere unreasonably with the business or operations of the Company or its Subsidiaries, (iii) neither the Company nor any of its Subsidiaries shall be required to waive or amend any terms of this Agreement, (iv) neither the Company nor any of its Subsidiaries shall be required to take or permit the taking of any action that will conflict with or violate its organizational documents or any applicable Legal Requirement, and (v) neither the Company nor any of its Subsidiaries shall be required to issue any offering or information document (other than as required to comply with the Company’s obligations pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c6.13)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light . None of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan Company nor any of its Subsidiaries shall be required to take or permit the taking of any action that would subject it to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment (iother than reasonable out-of-pocket costs that will be reimbursed by Parent pursuant to clause (b) interfere unreasonably or incur any other liability or provide or agree to provide any indemnity in connection with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan Financing or any of the foregoing that would be effective prior to the Closing. The Company hereby consents to the use of the logos of the Company and its Subsidiaries (unless waived by AbbVie)in connection with the syndication or marketing of the Financing; provided that such logos are used in a manner that is reasonable and customary in connection with a Financing, (iii) cause and any directorin event, officer not intended to harm or employee or shareholder of Allergan or any of disparage the Company, its Subsidiaries to incur any personal liability or their marks.
(ivb) result in a material violation or breach Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable out-of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, -pocket costs incurred by the Organizational Documents of Allergan Company or its Subsidiaries in connection with their cooperation and indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, settlements, costs or any applicable Law. AbbVie shall cause all non-public expenses (including reasonable attorneys’ fees) suffered or incurred by them to the extent such losses, damages, claims, interest, awards, judgments, penalties, settlements, costs or expenses arose out of the actions taken by the Company, its Subsidiaries or their respective Representatives pursuant to this Section 6.13 (other confidential than information provided by the Company, its Subsidiaries or on behalf their respective Representatives in writing for express use therein), except to the extent such losses, damages, claims, interest, awards, judgments, penalties, settlements, costs or expenses are determined by a final non-appealable judgment of Allergan a court of competent jurisdiction to have arisen out of or resulted from the gross negligence or willful misconduct of the Company, any of its Subsidiaries or Representatives any of their respective Representatives.
(c) Notwithstanding anything herein to the contrary, Parent and Purchaser acknowledge and agree that obtaining the Financing is not a condition to consummation of the Transactions, and that, irrespective and independently of the availability of the Financing, Parent and Purchaser shall be obligated to pay for the tendered Shares and consummate the Merger and the other Transactions as provided herein, subject to the satisfaction or waiver of the Offer Conditions or the conditions set forth in Section 7, as applicable. Notwithstanding anything in this Agreement to the contrary, the condition set forth in clause (c) of Annex I, as it applies to the Company’s obligations pursuant to this Section 7.9 to 6.13, shall be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesdeemed satisfied.
Appears in 2 contracts
Sources: Merger Agreement (Juno Therapeutics, Inc.), Merger Agreement (Celgene Corp /De/)
Financing Cooperation. (a) Until From the earlier of Execution Date until the Completion and Closing or the valid termination of this Agreement pursuant to and in accordance with Article 9Section 9.1, Allergan Seller shall use its commercially reasonable best effortsefforts to provide, and shall cause each of its the Company and the Subsidiaries to use its commercially reasonable best efforts, efforts to provide (and shall to use its commercially reasonable best efforts to cause its and their Representatives to provide) such customary and timely cooperation to Buyer as Buyer may reasonably request in connection with arranging, syndicating, marketing and consummating the Financings, including:
(i) providing commercially reasonable cooperation in respect of presentations or meetings customary for financing marketing or syndication activities held by or on behalf of Buyer with the Financing Sources regarding the Financings; provided, however, that Seller shall not be obligated to cause the participation of representatives in meetings, presentations, conference calls, road shows, due diligence sessions, rating agencies sessions and other customary financing meetings or syndication activities;
(ii) using commercially reasonable efforts to make available to Buyer, its Representatives and the Financing Sources and their respective officers, employees and advisors and agents, such financial information or other Representativesinformation as Buyer may reasonably request in connection with the preparation by ▇▇▇▇▇ and the Financing Sources of any marketing materials, offering memoranda, prospectuses, registration statements or similar offering documents, bank information memoranda, bank books, marketing or investor presentations, ratings agency presentations and similar documents (collectively, the “Financing Materials”) proposed to be used in the Financings, including legal providing customary authorization letters acceptable to Buyer to the Financing Sources authorizing the distribution of information to prospective investors, lenders and accounting advisorsother financing sources (without limiting the confidentiality restrictions noted below) (provided that none of Seller, Seller Parent, the Company or any of its Subsidiaries shall be required to use their prepare any pro forma financial statements, prepare projections or other forward-looking information covering any period after the Closing or provide any information relating to the proposed aggregate amount of debt and equity financing, together with assumed interest rates, dividends (if any) and/or any fees and expenses relating to the incurrence of such debt or equity financing, 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 Financings or any financial information related to Seller Parent, the Company or any of its Subsidiaries or any adjustments that are not directly related to the acquisition of the Purchased Shares by Buyer);
(iii) providing Buyer and its Representatives with the Financial Statements, and permitting Buyer on reasonable best effortsterms to include and/or incorporate by reference in any such offering materials any public disclosure documents of Seller Parent or extracts therefrom; provided, that, in any event, there shall be no obligation to provide (x) unaudited consolidated interim carve out financial statements for the fourth fiscal quarter of any fiscal year or any fiscal quarter prior to AbbVie the date that is (ten) 10 Business Days after the date of publication of the quarterly financial statements of Seller Parent in respect of such fiscal quarter or (y) audited consolidated interim carve out financial statements for any fiscal year prior to the date that is ten (10) Business Days after the date of publication of the audited consolidated financial statements of Seller Parent in respect of such fiscal year;
(iv) using commercially reasonable efforts to provide Buyer and the Financing Sources with information required with respect to the Company Group and its Subsidiaries such assistance Affiliates (A) as may be reasonably requested by AbbVie in writing that is customary in connection with the arranging, obtaining and syndication of Financing Sources under the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable noticeFinancing Documents, (B) assisting with AbbVie’s preparation in order to complete any disclosure schedules contemplated by any Financing Documents and (C) in order to create and perfect any security interests of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required the Financing Sources in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining promptly following request made in writing at least ten (10) Business Days prior to the consents Closing, providing Buyer and any of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan Financing Sources with all documentation and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used other information required in connection with the FinancingFinancings under applicable anti-money laundering or beneficial ownership disclosure laws, rules and regulations, know-your-client processes, including without limitation, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended and with respect to beneficial ownership;
(vi) obtaining Allergan’s independent auditors’ using commercially reasonable efforts to obtain customary cooperation from any of its auditors and any other advisors to the use of any financial or other expert information customarily included in Financing Materials or customarily included in offering materials for financing transactions similar to the Financings and to the identification in Financing Materials of each such advisor, including any consents from such auditors or other advisors with respect to the inclusion thereof in such Financing Materials and customary comfort letters with respect to such information (and assistance if required for the provision of such comfort letters, to provide customary management representation letters in support of the foregoing) and, if reasonably required in connection with the accounting Financings, using commercially reasonable efforts to cause such auditors or other advisors to provide reasonable attendance at due diligence activities sessions in support of the Financing Sourcesforegoing.
(b) Seller shall only be required to undertake (or cause the Company or its Subsidiaries or any of their respective Representatives to undertake, as applicable) the actions described in Section 6.20(a); provided that:
(i) such cooperation does not unreasonably interfere with the ongoing business operations of Seller or any member of the Company Group or any of their Subsidiaries or any of their respective Representatives;
(viiii) causing other than any authorization letters as described in Section 6.20(a)(i), none of Seller or any member of the Financing Company Group nor any of their Representatives shall be required to benefit from execute, enter into or perform any definitive financing documents, certification, instrument or agreement or make any representation in connection with the existing lender relationships Financings or adopt any resolution approving the agreements, documents and/or instruments pursuant to which any debt financing is obtained or pledge any collateral with respect to any debt financing that is not contingent on the occurrence of Allergan and its SubsidiariesClosing;
(viiiiii) providing documents reasonably requested by AbbVie neither the board of directors of the Company nor any of the Subsidiaries’ respective boards of directors (or the Financing Sources relating equivalent bodies) shall be required to the repayment approve or refinancing of adopt any indebtedness for borrowed money of Allergan financing or agreements related thereto (or any of its Subsidiaries to be repaid alternative financing) that would take effect prior to, or refinanced on are not otherwise conditional upon the Completion Date occurrence of, the Closing (and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any no such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter directors shall be expressly conditioned on the Completionrequired to take such action);
(ixiv) procuring no employee, officer or director of Seller or any member of the Company Group shall be required to take any action which could reasonably be expected to result in such Person incurring any personal liability (as opposed to liability in his or her capacity as an officer) with respect to any matters related to such Financing; and
(v) any actions taken under Section 6.20(a)(i)-(vi) (but subject to Section 6.20(b)(i)-(iv)) shall be, and shall be deemed to be, taken in compliance with Section 6.20(a).
(c) Without limiting the provisions of Section 6.14, Seller acknowledges that, in connection with the Financings, Buyer may, upon reasonable consultation with Seller, have confidential discussions concerning this Agreement or the Transaction with the Financing Sources, rating agencies, prospective lenders and investors and each of their agents and advisors prior to and during syndication of the Financings (including any replacement or alternative financing) and that confidential or otherwise non-public information may be provided to the Financing Sources, rating agencies, prospective lenders and investors and each of their agents and advisors, and Seller consents, and confirms that the Company and the Subsidiaries have each consented to Buyer and its Affiliates and Representatives having such discussions and providing such information, provided that such Financing Sources, rating agencies, prospective lenders and investors and each of their respective agents and advisors agree to keep any applicable confidential information concerning the Company Group confidential, including through “click through” confidentiality agreements and confidentiality provisions contained in customary bank books and offering memoranda, unless otherwise expressly permitted under the Confidentiality Agreement.
(d) Without limiting the generality of the foregoing, Seller hereby consents to the reasonable use of all logos of Allerganthe Company and the Subsidiaries, and to cause the Company and any of Seller’s Affiliates who hold the requisite rights and interests in such logos in connection with to permit their use by Buyer and the Financing (provided Sources in any Financing Materials; provided, that such logos are used solely in a manner that is not intended to and is not intended, or reasonably likely likely, to harm or disparage Allergan Seller or its Subsidiaries Affiliates or the reputation or goodwill of Allergan Seller or its Affiliates, and solely in connection with a description of the Company Group, its collective business and products or the Transaction (including the Financings); or used in any other manner as may be approved by the Company from time to time.
(e) None of Seller or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and Affiliates shall be required to: pay any commitment, consent or other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date similar fee, incur any liability, or provide or agree to provide any indemnity in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective Financings prior to the Completion Date Closing; take any action or would do anything that could reasonably be effective if expected to: contravene any applicable Laws or its Organizational Documents in effect as of the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof date of this Agreement; breach or do any thing that would not conflict with applicable Law and would be accurate result in light a default under any material contract to which Seller Parent or any member of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to Company Group or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to Subsidiary is party; cause any such information to be disclosed in a manner that would not result in the loss breach of any such privilege), (iv) deliver this Agreement or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation misrepresentation or warranty in this Agreement to be breached by Allergan or cause any closing condition set forth in Article 7 to fail to be satisfied; prevent or materially delay the consummation of the Transaction; or jeopardize any solicitor-client privilege or other applicable legal privilege or protection of Seller Parent, the Company or any of its Subsidiaries; disclose any information that would result in the disclosure of any trade secrets or similar information or violate any obligations of Seller or its Affiliates with respect to confidentiality that are owed to any Third Party or disclose any information that is legally privileged; provided, Seller shall use commercially reasonable efforts, and shall use commercially reasonable efforts to cause the Company and its Subsidiaries to, notify Buyer if any documentation and information is being so withheld, in each case, to the extent permitted under the applicable obligation of confidentiality; or waive or amend any terms of this Agreement. Nothing in this Agreement will require any Representative of Seller or its Affiliates to deliver any certificate or opinion or take any other action pursuant to this Section 6.20 that would or would reasonably be expected to result in personal liability to such Representative.
(unless waived f) Buyer shall, promptly upon request by AbbVieSeller (and in any event following termination of this Agreement), reimburse Seller and/or if Affiliates, as applicable, for all reasonable and documented out-of-pocket costs (iiiincluding reasonable and documented out-of-pocket legal fees) cause any director, officer or employee or shareholder incurred by Seller of Allergan or its Affiliates in connection with any of the actions contemplated by this Section 6.20, and shall indemnify and hold harmless Seller and its Subsidiaries to incur Affiliates and their respective Representatives from and against any personal liability and all losses, damages, claims, costs or (iv) result in a material violation expenses suffered or breach of, or a default under, any material Contract to which Allergan or incurred by any of its Subsidiaries is them in connection with the cooperation of Seller and the Company Group contemplated by this Section 6.20 or in connection with the Financings, in each case, other than to the extent resulting from a party, misrepresentation (within the Organizational Documents meaning of Allergan or its Subsidiaries or the Securities Act (Alberta)) in any applicable Law. AbbVie shall cause all non-public or other confidential written information provided supplied by or on behalf of Allergan Seller, Seller Parent or the Company Group (or which relates to Seller, Seller Parent or the Company Group and is approved in writing (including by email) by Seller, Seller Parent or any of the Company Group) or from Seller’s, Seller Parent’s or the Company’s or any of the Subsidiaries’ fraud, gross negligence or willful misconduct, in each case as determined in a final and non-appealable judgment by a court of competent jurisdiction.
(g) Notwithstanding anything to the contrary in this Agreement, the parties hereto acknowledge and agree that a breach by Seller of its obligations under this Section 6.20 shall not (A) constitute a breach of this Agreement for which Buyer may seek damages unless such breach by Seller is (1) an intentional and material breach, (2) not cured by Seller within ten (10) Business Days after written notice from Buyer and (3) a significant contributing cause of Buyer not being able to obtain its Financings or (B) constitute a breach of the condition precedent in Section 7.2(b), and the provisions contained in this Section 6.20 represent the sole obligations of the Seller Parent, the Seller and the Company Group and any of their Representatives with respect to cooperation in connection with the arrangement of any financing (including the Financings) to be obtained by Buyer or any of its Subsidiaries Affiliates with respect to the Transaction, and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesmodify such obligations.
Appears in 2 contracts
Sources: Share Purchase Agreement (Plains Gp Holdings Lp), Share Purchase Agreement (Plains All American Pipeline Lp)
Financing Cooperation. (a) Until Prior to the earlier of the Completion Closing, each Cabot Party agrees to, and the valid termination of this Agreement pursuant to and in accordance with Article 9cause its Subsidiaries to, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries efforts to use its reasonable best effortsprovide, and shall use its reasonable best efforts to cause its their respective Representatives to provide, to the Columbus Parties and their respective officersSubsidiaries, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance cooperation as may be customary and reasonably requested by AbbVie (subject in all cases to the limitations on access and information in Section 5.1) in writing by Columbus that is customary necessary in connection with the arrangingarrangement of any debt financing to be obtained by the Columbus Parties or any of their Subsidiaries (“Debt Financing”), obtaining and syndication of the Financing, including using reasonable best efforts with respect toincluding:
(ia) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect during normal business hours at times to (A) the participation by members of management of Allergan with appropriate seniority be mutually agreed in a reasonable number of customary meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable agencies that are customary for debt financings of the type sought to Allergan and upon reasonable notice, be arranged;
(Bb) assisting with AbbVie’s the preparation of customary materials for registration statementsrating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations prospectuses and similar documents required documents;
(c) as promptly as reasonably practical, furnishing to any of the Columbus Parties, their respective Subsidiaries and/or their financing sources with historical financial information (including quarterly and annual financial statements delivered pursuant to Section 5.1(f)(iii) and (iv)) and other pertinent information relating solely to Cabot and the Transferred Subsidiaries as may be reasonably requested by ▇▇▇▇▇▇▇▇ (including in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the Columbus Parties’ and/or their respective Subsidiaries’ preparation of pro forma financial statements), including historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into other pertinent information relating solely to Cabot and the Allergan SEC Documents Transferred Subsidiaries) (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (Ax) of the type that would be and form required by Regulation S-X and Regulation S-K promulgated under the Securities Act if for a registered public offering of non-convertible debt securities, (y) of the Financing were incurred by AbbVie type and registered on Form S-3 form customarily included in private placements of non-convertible debt securities under Rule 144A of the Securities ActAct or (z) as otherwise reasonably required or otherwise reasonably necessary to assist any of the Columbus Parties and/or their Subsidiaries in receiving customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with any public offering or private placement of non-convertible debt securities; provided, including audit reports of annual financial statements to that the extent so required (which audit reports Cabot Parties and their Subsidiaries shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie required to prepare or provide: (A) any pro forma financial statements customary for Financings of the applicable type;
(iii) providing information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments desired to AbbVie’s legal counsel and its independent auditors such customary documents and other customary be incorporated into any pro forma financial information, including information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters or assistance relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation proposed aggregate amount of debt financing, together with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees assumed interest rates, dividends (if any) effected thereby, including customary payoff letters and (fees and expenses relating to the extent required) evidence that notice of any such repayment has been timely delivered to the holders incurrence of such indebtedness, in each case in accordance with debt (it being understood and agreed that the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to Cabot Parties and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its their Subsidiaries shall be required to take or permit assist the taking Columbus Parties and/or their respective Subsidiaries with preparing pro forma financial information and pro forma financial statements regarding Cabot and the Transferred Subsidiaries as part of any action pursuant to this Section 7.9(aof the Columbus Parties’ or their respective Subsidiaries’ preparation of pro forma financial information and pro forma financial statements for Columbus or Columbus Holdings and their respective Subsidiaries on a consolidated basis, in each case, that is customary for the type of financing being sought); (B) or Section 7.9(b) below to (i) pay any commitment projections, risk factors or other fee forward looking information (it being understood and agreed that the Cabot Parties and their Subsidiaries shall be required to assist the Columbus Parties and/or their respective Subsidiaries with the preparation for presentation of projections, risk factors and other forward looking information for Cabot and the Transferred Subsidiaries as part of the consolidated business of Columbus or incur Columbus Holdings and their respective Subsidiaries, and not on a stand-alone basis, in each case, that is customary for the type of financing being sought); (C) any liability description of all or any portion of any such Debt Financing, including any “description of notes”, “plan of distribution” or information customarily provided by investment banks or their counsel or advisors in preparation of a prospectus for registered offerings of non-convertible debt securities or an offering memorandum for private placements of non-convertible debt securities under Rule 144A of the Securities Act; (D) segment reporting or consolidating and other financial statements or data required by Rules 3-09, 3-10, 3-16, 13-01 or 13-02 of Regulation S-X under the Securities Act; (E) compensation discussion and analysis and other information required by Item 402, 404 or 601 of Regulation S-K under the Securities Act; (F) any information regarding executive compensation and related pension disclosure rules related to SEC Release Nos. 33-8732A, 34-54302A and IC-27444A; (G) any financial statements (other than thirdthe historical financial statements referenced above) that Cabot Parent does not maintain in the Ordinary Course; (H) any other information (other than as expressly set forth above) not reasonably available to Cabot Parent under its current reporting systems; and (I) any other information customarily excluded from a prospectus for registered offerings of non-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)convertible debt securities or an offering memorandum for private placements of non-convertible debt securities under Rule 144A of the Securities Act (clauses (A) – (I), collectively, the “Excluded Information”);
(iid) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective using reasonable best efforts to cause its independent accountants to cooperate with such Debt Financing consistent with their customary practices and, to the extent reasonably requested by any of the Columbus Parties or their respective Subsidiaries, to obtain customary accountants’ “comfort letters” (including customary “negative assurances”) and customary consents to the inclusion of audit reports in connection with such information Debt Financing;
(e) executing and delivering customary authorization and representation letters in connection with such financing arrangements, to be disclosed in a manner the extent reasonably requested by any of the Columbus Parties or their respective Subsidiaries; and
(f) executing and delivering any customary officer’s certificates and similar documents, to the extent reasonably requested by any of the Columbus Parties or their respective Subsidiaries, provided that would not result in the loss effectiveness of any such privilege), (iv) deliver certificate or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and similar document shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel be subject to the trustee under occurrence of and no earlier than the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesClosing.
Appears in 2 contracts
Sources: Transaction Agreement (Cco Holdings LLC), Transaction Agreement (Cco Holdings LLC)
Financing Cooperation. (a) Until From the date hereof until the earlier of the Completion Closing and the valid termination of this Agreement pursuant to and in accordance with Article 9Agreement, Allergan shall use its reasonable best effortsthe Company shall, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its the other Company Entities and their respective officers, directors, principals, managers and employees and advisors and other Representativesto, including legal and accounting advisors, to use their commercially reasonable best efforts, efforts to provide to AbbVie the following assistance and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary cooperation in connection with the arrangingfinancing contemplated by the executed commitment letter, obtaining and syndication dated as of the date hereof, from the Financing Sources party thereto (the "Debt Commitment Letter") or any other commitment to provide financing in connection with the transactions contemplated by this Agreement (such financing contemplated by the Debt Commitment Letter or such other commitment letter, the "Financing, including using reasonable best efforts with respect to:"):
(i) participating making senior management and officers of any Company Entity reasonably available during normal business hours on a virtual (as opposed to in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect person) basis to (A) the participation by members of management of Allergan with appropriate seniority participate in a reasonable number of meetings, presentationscalls, road shows, drafting and diligence sessions, and up to two customary lender due diligence sessions presentations in connection with the Financing and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (By) assisting as is reasonably necessary with AbbVie’s the preparation of customary materials for registration statementslender presentations, offering documents, private placement memorandarating agency presentations, bank information memoranda (including confidential information memoranda), prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers)Financing;
(ii) timely furnishing AbbVie and its allowing Purchasers to provide the Financing Sources with historical financial and other customary information (collectivelySources, subject to confidentiality restrictions, access to the Financial Statements, the “Financing Information”) with respect Data Room, and any other pertinent information regarding the Company Entities or the business of the Company Entities that has been made available to Allergan Purchasers or that is readily available to Seller or the Company and its Subsidiaries as is has been reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable typePurchasers;
(iii) providing to AbbVie’s legal counsel and its independent auditors such furnishing Purchasers with customary documents and other customary financial information relating to Allergan and its Subsidiaries of the Company Entities as may be reasonably requested by either Purchaser or the Financing Sources in connection with their delivery the Financing, including financial statements, pro forma financial statements of any customary negative assurance opinions the Company Entities (provided that the preparation of combined pro forma financial information and the assumptions underlying the pro forma adjustments to be made are the responsibility of Purchasers), and reasonable and customary comfort authorization letters relating to the FinancingFinancing Sources authorizing the distribution of information about the Company Entities to prospective lenders and containing customary information and confidentiality provisions;
(iv) causing Allergan’s independent auditors reasonably assisting with the preparation of schedules to provide customary cooperation with the definitive documentation for the Financing;
(v) obtaining (w) cooperating with Financing Sources due diligence investigation and evaluation of the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan Company Entities’ assets, cash management and to references to such independent auditors as experts in any Marketing Material accounting systems, policies and registration statements and related government filings filed or used in connection with the Financing;
procedures relating thereto, (vix) obtaining Allergan’s independent auditors’ customary comfort payoff letters to allow for the payoff, discharge and assistance with termination in full upon the accounting due diligence activities occurrence of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships Closing of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any all indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date Company Entities and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing Liens securing such indebtedness (provided other than Permitted Liens), (y) taking reasonable actions that any such notice or payoff letter shall be expressly conditioned on are necessary to permit the Completion);
(ix) procuring consents consummation of the Financing pursuant to the reasonable use of all of Allergan’s logos in connection with the Debt Commitment Letter (including any Permanent Financing (provided that such logos are used solely as defined in a manner that is not intended to the Debt Commitment Letter)), and is not (z) obtaining customary accountants' comfort letters and audit reports as reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries)requested by Purchasers; and
(xvi) providing at least three seven (37) Business Days in advance of business days prior to the Completion Date such Closing Date, providing all documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date Financing Sources in connection with the Financing that relates to applicable “"know your customer” " and anti-money laundering rules and regulations, including without limitationthe USA Patriot Act of 2001 and 31 C.F.R. § 1010.230 (provided that Purchasers shall be responsible for the preparation of the beneficial ownership certificates that will be effective upon the Closing), to the extent requested in writing by either Purchaser at least nine (9) business days prior to the Closing Date; provided that (i) other than pursuant to customary authorization letters, none of (x) Seller or any of its Affiliates (other than the Company Entities) or Representatives or (y) prior to the Closing, the USA PATRIOT ACTCompany Entities shall be required to incur any Liability or obligation (including any obligation to pay any commitment fee or closing payment or give any indemnities to any third party) in respect of the Financing or any assistance provided in connection with the Financing, and (ii) none of Seller or any of its Affiliates, nor any Company Entity nor any of their respective Representatives shall have any obligation to approve, authorize or ratify the execution of any of the definitive documents in respect of the Financing, except, in the case of the Company Entities, to the extent effective after the Closing. Notwithstanding anything to the contrary contained herein, nothing in this Section 7.9(a6.08 shall require any such cooperation or assistance to the extent that it would reasonably be expected to result in any Company Entity being required to (I) or Section 7.9(bpledge any assets as collateral until the occurrence of the Closing, (II) belowtake any actions to the extent such actions would, in the Company's reasonable judgment, (A) none unreasonably and materially interfere with the ongoing business or operations of Allergan nor the Company Entities, (B) subject any director, manager, officer or employee of any Company Entity or any of its Subsidiaries shall their Affiliates to any actual or potential personal liability, (C) require any Company Entity to change any fiscal period or (D) cause (x) any representation or warranty set forth in Article III or Article IV to be required inaccurate or breached, (y) any condition set forth in Section 2.01 to fail to be satisfied or (z) any other breach of this Agreement, (III) waive or amend any terms of this Agreement, (IV) commit to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay under any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case instrument that would be effective prior to is not contingent upon the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental IndenturesClosing, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iiiV) provide access to to, or disclose disclose, information that Allergan or any of its Subsidiaries the Company reasonably determines would jeopardize any attorney-client privilege of Allergan of, or conflict with any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries confidentiality requirements applicable to, use the Company Entities or their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations Affiliates or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iiiVI) cause any director, manager, officer or employee equivalent of the Company Entities or shareholder their Affiliates to pass resolutions to approve the Financing or authorize the creation or execution of Allergan any agreements, documents or actions in connection therewith (other than any director, manager, officer or equivalent of the Company Entities who will continue in such a position following the Closing and the passing of such resolutions), in each case, that are not contingent on the Closing or would be effective prior to the Closing. Purchasers acknowledge and agree that obtaining the Financing is not a condition to the Closing and that notwithstanding anything contained in this Agreement to the contrary, Purchasers' obligations hereunder are not conditioned in any manner upon obtaining the Financing or any other financing. In the event the Financing has not been obtained, Purchaser will continue to be obligated, subject to the satisfaction or waiver of its Subsidiaries the conditions set forth in Section 2.01, to incur consummate the Closing. The Company hereby consents to the reasonable use of the Company Entities' trademarks, service marks and logos solely in connection with the Financing and the other transactions contemplated by this Agreement.
(b) Purchasers shall be responsible for all fees and expenses related to the Financing. Accordingly, Purchasers shall promptly reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable outside attorneys' fees of one counsel and fees and expenses of the Company Entities' accounting firms engaged to assist in connection with the Financing, including performing additional requested procedures, reviewing any personal liability offering documents and participating in any meetings) incurred by any Company Entity in connection with their cooperation pursuant to this Section 6.08 or (iv) result otherwise in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a partyconnection with the Financing. Purchasers shall indemnify and hold harmless Seller, the Organizational Documents Company Entities and their respective Affiliates and all of Allergan their respective directors, officers, managers, employees and representatives from and against any and all Liabilities suffered or its Subsidiaries or incurred by them in connection with the arrangement of the Financing and any applicable Law. AbbVie shall cause all non-public or other confidential information provided utilized in connection therewith, except to the extent arising from (x) information furnished in writing by or on behalf of Allergan the Company Entities or any of its Subsidiaries (y) the gross negligence, bad faith or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication Fraud of the Financing will be in a form customary for use in Company, the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesCompany Entities or Seller.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Utz Brands, Inc.), Stock Purchase Agreement (Utz Brands, Inc.)
Financing Cooperation. (a) Until From the earlier of date hereof until the Completion Closing, the Company shall, shall cause its Subsidiaries and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best effortsJoint Venture Entities to, and shall use its commercially reasonable best efforts to cause its and their respective officersRepresentatives to, employees use commercially reasonable efforts to provide, on a timely basis, at Parent’s and advisors Merger Sub’s sole cost and other Representativesexpense, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be all customary cooperation reasonably requested by AbbVie Parent or Merger Sub or any Financing Source to assist Parent, Merger Sub and their Affiliates in writing that is customary causing the conditions to any bank debt financing or any capital markets debt or equity financing deemed necessary or appropriate by the Parent or Merger Sub including for the purposes of financing the payment of the Merger Consideration, Preferred Share Consideration, refinancing any existing indebtedness of the Company, its Subsidiaries and the Joint Venture Entities, and any other amounts required to be paid in connection with the arrangingconsummation of the Transactions (collectively, obtaining the “Financing”) to be satisfied, which requested cooperation may include using commercially reasonable efforts in connection with:
(i) providing reasonable cooperation with customary syndication or other marketing efforts, or a customary offering, of Parent and syndication Merger Sub for all or any portion of the Financing, including using reasonable best efforts access to documents and other information in connection with respect to:
(i) participating in customary due diligence investigations and assisting with the due diligencecausing its management team, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority and expertise, to assist in a reasonable number of meetings, presentations, road shows, drafting sessionsmarketing materials, due diligence sessions, drafting sessions and sessions with prospective lendersrating agencies;
(ii) upon reasonable advance notice and during normal business hours, investors (A) providing Parent, Merger Sub and/or the Financing Sources with the (x) audited combined balance sheets and related statements of income and cash flows of the Company and its consolidated subsidiaries for the two most recently completed fiscal years ended at least 90 days prior to the Closing Date and (y) unaudited combined balance sheets and related statements of income and cash flows of the Company and its consolidated subsidiaries for each fiscal quarter ended after the most recent audited financial statements delivered pursuant to clause (x) and furnishing to Parent, Merger Sub and/or the Financing Sources, upon their reasonable request therefor, such other information regarding the Company, including other financial information reasonably necessary for the preparation of pro forma financial statements and information regarding the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for purposes of establishing collateral arrangements as of the Closing and to assist with other collateral audits and due diligence examinations, and (B) providing reasonable assistance to Parent’s preparation of pro forma financial information and projections required to consummate the Financing;
(iii) no later than March 16, 2021, providing the Company’s audited consolidated financial statements, including a balance sheet, statements of operations, stockholders’ equity and cash flows as of and for the fiscal year ended December 31, 2020;
(iv) upon reasonable advance notice and during normal business hours, providing reasonable assistance to Parent and Merger Sub (including by causing its management team, with appropriate seniority and expertise, to participate in a reasonable number of meetings, presentations, drafting sessions and sessions with the Financing Sources and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s in the preparation of customary materials for registration statementsrating agency presentations, road show materials, lender information memoranda and other presentations, prospectuses and bank syndication materials, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations memoranda and similar documents required (which may incorporate, by reference, periodic and current reports filed by the Company with the SEC) in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in marketing of any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications)syndication, or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements a customary for Financings offering, of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery all or a portion of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens furnishing Parent and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing Merger Sub at least three four (34) Business Days in advance of prior to the Completion Closing Date such with all documentation and other information about Allergan required and its Subsidiaries as is reasonably requested in writing by AbbVie the parties acting as lead arrangers for, or lenders under, the Financing at least ten (10) Business Days in advance of prior to the Completion Date in connection with the Financing that relates to Closing under applicable “know your customer” and anti-money laundering rules and regulationsregulations and the USA Patriot Act of 2001;
(vi) requesting that the Company’s independent accountants participate in accounting due diligence sessions and cooperate with the Financing consistent with their customary practice, including without limitationrequesting that the Company’s independent accountants provide customary comfort letters (including “negative assurance” comfort, if permitted) and consents for use of their reports to the USA PATRIOT ACT. extent required in connection with the marketing and syndication of the Financing or as are customarily required in an offering of debt, equity or equity-linked securities;
(vii) cooperation with Parent and Merger Sub and their respective efforts to obtain customary corporate, facilities and securities ratings;
(viii) providing customary authorization letters to the arrangers in respect of the Financing authorizing the distribution of information to prospective lenders;
(ix) subject to Section 5.13(b) taking all reasonable and customary corporate action, limited liability company action or other organizational action, as applicable, subject to the occurrence of the Closing, necessary to permit and/or authorize the consummation of the Financing;
(x) reasonable facilitation (through providing and executing customary agreements, documents or certificates) of the pledge and perfection of liens and security interests in connection with the Financing, as may be reasonably requested by Parent and/or Merger Sub (provided that no obligation under any such document or agreement will take effect until the Closing);
(xi) providing all cooperation that is reasonably necessary to satisfy the conditions precedent to any documents relating to the Financing, but solely to the extent the satisfaction of such conditions requires the cooperation of, or is within the control of the Company, its Subsidiaries or its Representatives, including ensuring that any financial information is compliant with applicable SEC rules and requirements, and compliant with customary required terms of a debt commitment letter or similar document and updated as necessary to avoid staleness in accordance with applicable SEC rules and requirements, and free of any material misstatement or omission;
(xii) otherwise providing cooperation that is customary and reasonable in connection with the marketing efforts of Parent, Merger Sub and the Financing Sources; and
(xiii) to the use of its trademarks and logos in connection with the Financing; provided, that such trademarks and logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Affiliates or the reputation or goodwill of the Company or any of its Affiliates.
(b) Notwithstanding anything in this Agreement to the contrary in this Section 7.9(a) or Section 7.9(b) below, contrary:
(Ai) none of Allergan nor the Company, its Affiliates or their respective Representatives (at any of its Subsidiaries time) shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee similar fee, incur or reimburse any costs or expenses or incur any other liability or obligation of any kind that is effective prior to the occurrence of the Closing or give any indemnities prior to the Closing in connection with the Financing (other than thirdexcept reasonable and documented out-party of-pocket costs and expenses that are to be the extent Parent or Merger Sub promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(creimburses the Company therefor)), ;
(ii) execute or deliver any definitive financing documents none of the Company or any other agreementof the Affiliates shall be required to (A) execute, certificateenter into, document approve or instrumentperform any binding agreement or commitment, or agree to any change to or modification of any existing agreement, binding agreement or commitment or incur any other actual or potential liability or obligation in connection with the Financing that is not subject to the occurrence of the Closing or (B) adopt any resolution or otherwise take any corporate or similar action or deliver any certificate, document approving or instrument, in each case authorizing the Financing that would be is effective prior to the Completion Date Closing;
(iii) nothing shall obligate the Company or would any Affiliate to provide, or cause to be effective if the Completion does not occur (except (x) provided, any legal opinion or to provide, or cause to be provided, any information or take, or cause to be taken, any action to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, doing so could reasonably be expected to (yA) customary officers’ certificates relating to the execution thereof that would not result in a conflict with or a violation of applicable Law and would be accurate in light of Law, Company’s or any Affiliate’s organizational documents or any agreement binding on the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Company or any of its Subsidiaries reasonably determines would Affiliates or any confidentiality obligations binding on the Company or any of its Affiliates, (B) subject the Company to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment (other than documented and reasonable out-of-pocket costs that are reimbursed by Parent or Merger Sub) or incur any other liability of any kind or provide or agree to provide any indemnity, (C) subject any director, manager, officer or employee of the Company or any of its Affiliates to any actual personal liability or (D) jeopardize any attorney-client privilege privilege; and
(iv) no action, liability or obligation (including any obligation to pay any commitment or other fees or reimburse any expenses) of Allergan the Company and its Representatives under any certificate, agreement, arrangement, document or instrument relating to the Financing shall be effective until the Closing.
(c) The Company and its Representatives shall not be obligated in connection with performing their obligations under this Section 5.13 to take or refrain from taking any action that would unreasonably interfere with ongoing business or operations of the Company or any of its Subsidiaries (provided that Allergan shallAffiliates. Parent and/or Merger Sub shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses incurred by the Company or any of the Affiliates in connection with the cooperation of the Company, the Affiliates and their respective Representatives contemplated by this Section 5.13 and shall cause its Subsidiaries toindemnify and hold harmless the Company, use the Affiliates and their respective reasonable best efforts Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with (1) such cooperation, (2) the Financing, (3) any information used in connection with the Financing (except with respect to written information provided by the Company or any of the Affiliates specifically for inclusion in offering materials relating to the Financing) and (4) any action taken by any of them at the request of Parent, Merger Sub or the Financing Sources pursuant to this Section 5.13, except to the extent such losses, damages, claims, costs or expenses arose from the gross negligence, bad faith, material breach or willful misconduct of the Company, its Affiliates or their Representatives. Notwithstanding anything in this Agreement to the contrary, the condition set forth in Section 6.02(b), as it applies to obligations of the Company under this Section 5.13, shall be deemed satisfied if (1) any breach by the Company of its obligations under this Section 5.13 did not cause any such information the failure of the Financing to be disclosed in obtained or (2) Parent and/or Merger Sub do not have the right to terminate this Agreement pursuant to Section 7.01 as a manner that would not result in the loss of any such privilege)breaches of this Section 5.13 by the Company. The obligations of Parent and Merger Sub under this Section 5.13(c) shall survive the termination of this Agreement.
(d) Each of Parent and Merger Sub acknowledges and agrees that the Company, (iv) deliver its Affiliates and their respective Representatives have no responsibility for any financing that Parent or cause its Representatives Merger Sub may raise in connection with the Transactions. Any offering materials and other documents prepared by or on behalf of or utilized by Parent, Merger Sub or their Affiliates, or any Person providing the Financing to deliver any legal opinion Parent or negative assurance letter (exceptMerger Sub, in connection with Merger Sub’s financing activities in connection with the entry into an Allergan Supplemental Indenture required Transactions, which include any information provided by Section 7.9(b)the Company or any of its Affiliates or Representatives, Allergan shallincluding any offering memorandum, banker’s book, prospectus or similar document used, or any other written offering materials used, in connection with any Financing, shall include a conspicuous disclaimer to the effect that neither the Company, nor any of its Affiliates or Representatives nor any employees thereof has any responsibility for the content of such document and disclaim all responsibility therefor and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver further include a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor disclaimer with respect to the Financing prior Company and its Affiliates and Representatives in any oral disclosure with respect to the Completion, such Financing.
(vie) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all All non-public or other confidential information provided obtained by Parent or on behalf of Allergan Merger Sub, its Representatives or any of its Subsidiaries or Representatives Person in connection with the Financing and pursuant to this Section 7.9 to 5.13 shall be kept confidential in accordance with the Confidentiality Agreement; provided, except that Allergan acknowledges Parent and agrees that Merger Sub shall be permitted to disclose such information to any Person providing the Financing, rating agencies and prospective lenders and investors during syndication or other marketing efforts relating to the Financing, subject to the rating agencies and prospective lenders and investors entering into customary confidentiality undertakings that will be obtained with respect to such information (including through a notice and undertaking in a form customarily used in confidential information memoranda for senior credit facilities), and to potential investors in a customary offering memorandum and related materials used in connection with syndication an offering of debt or equity securities used to finance the consummation of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesTransactions.
Appears in 2 contracts
Sources: Merger Agreement (New Fortress Energy Inc.), Merger Agreement (Golar LNG LTD)
Financing Cooperation. (a) Until From the date of this Agreement until the earlier of the Completion and Closing or the valid termination of this Agreement pursuant to and in accordance with Article 9VIII, Allergan shall use its reasonable best effortsat the sole expense of the OpCo Buyer or the PropCo Buyer, and as applicable, the Seller shall cause the Company and each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its Company Subsidiary and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, Representatives to use their commercially reasonable best efforts, efforts to provide to AbbVie and its Subsidiaries the OpCo Buyer or the PropCo Buyer, as applicable, such assistance cooperation as may be reasonably requested by AbbVie in writing that is customary in connection with the arranging, obtaining and syndication any Financing of the FinancingOpCo Buyer or the PropCo Buyer for any of the Transactions and that is reasonably requested by the OpCo Buyer or the PropCo Buyer, as applicable, including using causing the Company and each Company Subsidiary and their respective Representatives to use commercially reasonable best efforts with respect to:
(i) participating assist in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of a customary materials for registration statementsconfidential information memorandum, offering documents, private placement memorandamemoranda and related lender and underwriter presentations and customary materials for rating agency presentations, bank information memoranda, prospectuses, rating agency presentations offering memoranda and similar documents required used in connection with such Financing; provided, that no such confidential information memorandum, offering documents, private placement memorandum, lender or underwriter presentations, rating agency presentation, bank information memorandum, prospectuses offering memorandum or other document shall be issued by the Financing Seller, the Company, any Company Subsidiary or their respective Affiliates or Subsidiaries;
(collectivelyii) upon reasonable prior notice, “Marketing Material”participate in a reasonable number of due diligence sessions, meetings and presentations with the underwriters, debt financing sources, and other proposed lenders or investors (including one-on-one sessions and conference calls) and due diligence in sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicablerating agencies, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable typeprovisions;
(iii) providing (A) as promptly as reasonably practicable, furnish to AbbVie’s legal counsel the applicable Buyer the Required Financial Information and its independent auditors such pertinent and customary documents financial information regarding the Company and other customary information relating to Allergan and its the Company Subsidiaries as may be reasonably requested by the applicable Buyer in connection with their delivery order to consummate such Financing and (B) periodically provide updates to the PropCo Buyer of any customary negative assurance opinions and customary comfort letters relating Required Financial Information provided to the FinancingPropCo Buyer, in each case as may be necessary so that such Required Financial Information (i) is Compliant and (ii) meets the applicable requirements set forth in the definition of “Required Financial Information”;
(iv) causing Allergansolely with respect to financial information and data derived from the Company’s independent auditors or the Company Subsidiaries’ historical books and records, assist the applicable Buyer with such Buyer’s preparation of pro forma financial information and pro forma financial statements required under such Financing, it being agreed that neither the Seller, the Company, any of Company Subsidiary or their respective Representatives will be required to provide any information (but agree to use commercially reasonable efforts to provide customary cooperation with assistance to the Financingapplicable Buyer) relating to (a) any description of any debt or equity financing or the proposed aggregate amount of any debt or equity financing or assumed interest rates and fees and expenses relating to the incurrence of such financing, (b) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments or (c) any financial information related to the Buyers or any of their respective Subsidiaries or any adjustments that are not directly related to the transactions contemplated by this Agreement (the “Excluded Information”);
(v) obtaining provide customary authorization letters to debt financing sources authorizing the consents distribution of Allerganinformation to prospective lenders;
(vi) request and facilitate the Company’s independent accountants to (A) provide, consistent with customary practice, (1) reasonable assistance to the applicable Buyer with such Buyer’s preparation of pro forma financial information and pro forma financial statements to be used in connection with such Financing (solely with respect to financial information and data derived from the Company’s or the Company Subsidiaries’ historical books and records) and (2) customary auditors consents to the applicable Buyer to use their audit reports on relating to the audited Historical Financial Statements of Allergan Company and the Company Subsidiaries and customary “comfort letters” with respect to references financial information relating to the Company and the Company Subsidiaries as necessary or customary for financings similar to such independent auditors as experts Financing and (B) participate in any Marketing Material a reasonable number of drafting sessions and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sourcessessions;
(vii) causing execute and deliver as of Closing (but not prior to Closing) definitive financing documents, including interest hedging arrangements and pledge and security documents, in each case as applicable and to the Financing to benefit from extent reasonably requested by the existing lender relationships applicable Buyer, and obtain surveys and title insurance and otherwise reasonably facilitate the pledging of Allergan collateral; provided that (a) none of the documents shall be executed 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 its Subsidiaries(c) no liability shall be imposed on the Seller, the Company, any of the Company Subsidiaries or any of their respective Representatives in connection therewith;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources obtain customary lien terminations relating to any Indebtedness of the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries Company and the Company Subsidiaries, to be repaid or refinanced on effective no earlier than the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion)Closing;
(ix) procuring consents furnish to the reasonable use of applicable Buyer and its financing sources all of Allergan’s logos financial statements and such other pertinent and customary financial information regarding the Company and the Company Subsidiaries reasonably requested by the applicable Buyer in connection with such Financing; provided, that (a) the Financing (provided that Company and the Company Subsidiaries shall only be obligated to furnish such logos are used solely in a manner that is not intended information to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries the extent such information may be derived from the Company’s or the reputation Company Subsidiaries’ historical books and (b) the Company and the Company Subsidiaries shall not be obligated to furnish (I) any financial statements not required to be delivered under Section 6.13 or goodwill of Allergan or (II) any of its Subsidiaries); andExcluded Information;
(x) providing provide at least three two (32) Business Days in advance of prior to the Completion Closing Date such all documentation and other information about Allergan the Company and its the Company Subsidiaries as is shall have been reasonably requested in writing by AbbVie the applicable Buyer at least ten seven (107) Business Days in advance of prior to the Completion Closing Date that is required in connection with the Financing that relates to applicable debt financing by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations; and
(xi) cooperate reasonably with the financing sources’ and underwriters’ or initial purchasers’ due diligence, including without limitation, to the USA PATRIOT ACT. extent customary and reasonable.
(b) Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) belowAgreement, (A1) none of Allergan nor any of its Subsidiaries shall be required to take nothing in Section 6.13 or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below 6.19 shall require cooperation to the extent it would (i) pay subject the Seller, the Company’s or any commitment Company Subsidiaries’ or other fee their respective Affiliates or incur Representatives to any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))actual or potential personal liability, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) unreasonably interfere unreasonably with the business or operations of Allergan the Seller, the Company or its the Company Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any directorreasonably be expected to conflict with, officer or employee or shareholder of Allergan violate, the Seller’s, the Company’s or any Company Subsidiary’s certificate of its Subsidiaries to incur formation, operating agreement or any personal liability organizational documents or (iv) any applicable Law, or result in a material the contravention of, or violation or breach of, or a default under, any material Contract to which Allergan the Seller, the Company, any Company Subsidiary or their respective Affiliates is a party, in each case, as in effect on the date hereof, (iv) cause any representation, warranty, covenant or other obligation in this Agreement or any Ancillary Agreement to be breached or any closing condition to fail to be satisfied, or (iv) require the Seller, the Company, any Company Subsidiary or their respective Affiliates or Representatives to (A) waive or amend any terms of this Agreement or any Ancillary Agreements or any other Contract to which any of them is a party, (B) agree to pay or pay any fees or reimburse any expenses or make any other payment in connection with any financing which are not reimbursed or indemnified hereunder, (C) give any indemnities or incur any liabilities in connection with any financing or any information utilized in connection therewith which are not reimbursed or indemnified hereunder, (D) deliver or obtain opinions of internal or external counsel or accountants’ comfort letters or reliance letters (except as expressly set forth in Section 6.19(a)(vi) above), (E) provide access to or disclose information where any of them determines that such access or disclosure could contravene any confidentiality agreement or jeopardize any legal or other privilege or (F) approach any third parties to discuss agreements limiting the rights of such third parties, (2) none of the directors or managers of the Company or any Company Subsidiary, acting in such capacity, shall be required to execute, deliver or enter into or perform any agreement, document or instrument relating to any financing, or adopt any resolutions or take any other actions approving any such agreements, documents or instruments, unless the Buyers shall have determined that such directors and managers are to remain as directors or managers of the Company or such Company Subsidiary on and after the Closing Date and such resolutions are contingent upon the Closing and will not be effective prior to the Closing Date, (3) the Company, the Company Subsidiaries and their respective Affiliates and Representatives shall not be required to undertake any obligation or execute, deliver or enter into any agreement, document or instrument with respect to any financing that is not contingent upon the Closing or that would be effective prior to the Closing Date (except as expressly set forth above) and (4) the Seller and its Affiliates (other than the Company and the Company Subsidiaries) and their respective Representatives shall not be required to undertake any obligation or execute, deliver or enter into any agreement, document or instrument with respect to any financing (whether or not conditioned on Closing) or adopt any resolutions or take any other actions approving the agreements, documents and instruments pursuant to which any financing is obtained (whether or not conditioned on Closing). Nothing contained in this Section 6.19 or otherwise shall require the Company or any Company Subsidiary to be a borrower or other obligor with respect to any financing prior to the Closing Date, and in no event shall the Seller or any of its Subsidiaries is Affiliates (other than the Company and the Company Subsidiaries) be required to be a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public borrower or other confidential information provided by or on behalf obligor with respect to any financing at any time whatsoever. The Seller hereby consents to the use of Allergan or the Company’s and the Company Subsidiaries’ logos as may be reasonably necessary in connection with any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality AgreementFinancing; provided, that Allergan acknowledges such logos are used solely in a manner that is not intended to, nor reasonably likely to, harm or disparage the Seller, the Company or the Company Subsidiaries.
(c) The Seller, the Company, the Company Subsidiaries and agrees that their respective Affiliates and Representatives shall not have any liability to the confidentiality undertakings that will be obtained Buyers in respect of any financial information or data or other information provided pursuant to Section 6.13 or this Section 6.19 (other than arising from fraud, gross negligence, willful misconduct or intentional misrepresentation by the Seller, the Company or any Company Subsidiary). The Buyers shall indemnify, defend and hold harmless the Seller, the Company, the Company Subsidiaries and each of their respective Affiliates and Representatives from, against and in respect of any liabilities, losses, damages, claims, costs, expenses, interest, awards, judgment and penalties imposed on, sustained, incurred or suffered by, or asserted against, any of them, whether in respect of third-party claims, direct claims or otherwise, directly or indirectly relating to, arising out of or resulting from the arrangement of any financing or the provision of information utilized in connection therewith or any cooperation of the Seller, the Company and the Company Subsidiaries contemplated by Section 6.13 or this Section 6.19 (other than arising from fraud, gross negligence, willful misconduct or intentional misrepresentation by the Seller, the Company or any Company Subsidiary) to the fullest extent permitted by applicable Law, and the foregoing obligations shall survive the Closing Date and termination of this Agreement. The Buyers shall promptly, upon request of the Seller or the Company, reimburse the Seller, the Company and the Company Subsidiaries for all costs and expenses (including reasonable attorneys’ fees) incurred by the Seller, the Company or any Company Subsidiary (including those of their respective Affiliates or Representatives) in connection with syndication the cooperation of the Financing will be Seller, the Company and the Company Subsidiaries contemplated by Section 6.13 or this Section 6.19, and the foregoing obligations shall survive the Closing Date and termination of this Agreement.
(d) The Parties acknowledge and agree that the provisions contained in a form customary for use this Section 6.19, represent the sole obligation of the Seller, the Company, the Company Subsidiaries and their respective Affiliates and Representatives with respect to cooperation in the syndication of acquisition-related debt during a takeover offer period in compliance connection with the requirements arrangement of any financing and no other provision of this Agreement shall be deemed to expand or modify such obligations.
(e) The OpCo Buyer and the PropCo Buyer shall keep the other Parties reasonably informed of material developments relating to any Financing of the Panel and applicable Buyer for any of the Takeover RulesTransactions.
Appears in 2 contracts
Sources: Transaction Agreement (Penn National Gaming Inc), Transaction Agreement (Vici Properties Inc.)
Financing Cooperation. (a) Until Prior to the earlier of Closing or, if earlier, the Completion and the valid termination of this Agreement pursuant to Agreement, the Company will, and in accordance with Article 9will cause its Subsidiaries to, Allergan shall use its reasonable best effortsefforts (at Parent’s sole cost and expense) to, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie the appropriate Representatives of the Company and its Subsidiaries to, provide such assistance cooperation as may be is customary and reasonably requested by AbbVie in writing that is customary Parent in connection with any Debt Financing, which cooperation will include (1) as promptly as practicable, furnishing Parent with the arranging, obtaining Required Information and syndication of other customary or pertinent information regarding the Company and its Subsidiaries reasonably requested by Parent (or the Debt Financing Sources) in connection with such Debt Financing, including using reasonable best efforts with respect to:
preliminary or “flash” information if requested and information relating to the rental fleet of the Company and its Subsidiaries, (i2) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and drafting sessions with prospective lenders, investors providers or potential providers of the Debt Financing and rating agencies, agencies during normal business hours and at mutually agreed times and at locations reasonably acceptable to Allergan and upon reasonable noticelocations, (B3) reasonably assisting with AbbVie’s Parent in the preparation of customary materials for customarily requested to be used in connection with obtaining the Debt Financing, including rating agency presentations, road show materials, bank information memoranda, credit agreements, registration statements, prospectuses, offering memoranda, bank syndication materials, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations memoranda and similar documents customarily required in connection with the Financing (collectivelyDebt Financing, “Marketing Material”) including the marketing and due diligence sessions related theretosyndication thereof, (C4) delivering assisting Parent with Parent’s preparation of pro forma financial information and consenting to projections, estimates of cost savings, synergies and post-closing adjustments, (5) reasonably cooperating with the inclusion or incorporation in marketing efforts for any SEC filing related to the Financing portion of the historical audited consolidated financial statements Debt Financing, including using its reasonable best efforts to ensure that any syndication efforts benefit from its existing lending relationships and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings using reasonable best efforts to assist Parent in obtaining any credit ratings in connection with the Marketing Material Debt Financing, (in each case, as applicable, subject 6) providing customary authorization letters authorizing the distribution of information provided by the Company or its Subsidiaries to prospective lenders and containing a customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its representation to the Debt Financing Sources with historical financial for the Debt Financing that such information provided by the Company or its Subsidiaries does not contain a material misstatement or omission and other containing a representation to the Debt Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Subsidiaries or its or their securities, (7) causing the independent accountants of the Company to (A) render customary information “comfort letters” (collectively, the “Financing Information”including customary negative assurance comfort and change period comfort) with respect to Allergan financial information regarding the Company and its Subsidiaries as is reasonably requested contained in any materials relating to the Debt Financing, (B) provide consents for use of their reports and opinions in any documents filed or furnished by AbbVie Parent with the SEC or its in any other materials or disclosures relating to the Debt Financing Sources and customarily required in Marketing Material for Financings which financial information of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan Company and its Subsidiaries is included and (AC) participate in a reasonable number of the type that would be required by Regulation S-X due diligence sessions, (8) delivering information and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements documentation related to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan Company and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of prior to the Completion Closing Date such documentation and other information about Allergan and its Subsidiaries as is required and reasonably requested in writing by AbbVie the Debt Financing Sources at least ten (10) Business Days in advance of prior to the Completion Closing Date in connection with the Financing that relates respect to compliance under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation, the USA PATRIOT ACT. Notwithstanding anything U.S.A. Patriot Act of 2001 and rules adopted by the Financial Crimes Enforcement Network of the U.S. Treasury Department, (9) (A) assisting with the pledging of collateral for the Debt Financing, including by permitting the evaluation or appraisal of assets, assisting with field audits, due diligence examinations and evaluations of the current assets, inventory and cash management systems of the Company and its Subsidiaries, (B) assisting with obtaining landlord waivers, consents or estoppels, and (C) assisting with obtaining releases of existing Liens, (10) taking all corporate actions, subject to the contrary occurrence of the Closing, reasonably requested by Parent to permit the consummation of the Debt Financing, (11) cooperating in satisfying the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent the satisfaction of such condition requires the cooperation of, or is within the control of, the Company and its Subsidiaries and (12) assisting with the preparation and execution of definitive Debt Financing Documents (including any guarantee, pledge and security documents, supplemental indentures, currency or interest rate hedging arrangements, other definitive financing documents, or other certificates or documents as may be reasonably requested by Parent or the Debt Financing Sources), and the schedules and exhibits thereto, in each case, as may be reasonably requested by Parent.
(b) Nothing in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit 7.19 will require the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below Company Group to (i) waive or amend any terms of this Agreement, pay any commitment or other fee or incur similar fee or agree to pay any liability (other than third-party costs and fees or reimburse any expenses that are or otherwise issue or provide any indemnities prior to be promptly reimbursed the Closing Date, for which it has not received prior reimbursement or is not otherwise indemnified by AbbVie upon request by Allergan pursuant to Section 7.9(c)), or on behalf of Parent; (ii) execute without limiting its obligations to deliver condition redemption notices, executed Payoff Letters, termination notices, payoff letters, bills of sale and Lien release documentation pursuant to Sections 7.16 and 7.17, enter into, approve, modify or deliver perform any definitive financing documents agreement or commitment or distribute any other agreement, certificate, document or instrument, or agree cash (except to any change the extent subject to or modification of any existing agreement, certificate, document or instrument, in each case concurrent reimbursement by Parent) that would will be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), Closing Date; (iii) provide access to or disclose information that Allergan or give any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, indemnities in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shallDebt Financing that are effective prior to the Closing Date, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel only to the trustee under extent previously agreed in writing by the applicable Indenture that Company; (iv) take any action that, in the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light good faith determination of the facts and circumstances at Company, would unreasonably interfere with the time delivered)), conduct of the business of the Company Group in any material respect; (v) be an issuer or other obligor except to the extent contemplated with respect to Required Information, prepare separate financial statements for any of the Financing Company Group to the extent not customarily prepared by the Company Group and to the extent such preparation would be unduly burdensome or change any fiscal period; (vi) adopt any resolutions, execute any consents or otherwise take any corporate or similar action to be effective prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or Closing; (vii) prepare provide any pro forma financial information legal opinion on or projections, prior to the Closing; (Bviii) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably will conflict with the business or operations of Allergan or violate its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan organizational documents or any of its Subsidiaries (unless waived by AbbVie), (iii) cause applicable laws in any director, officer material respect or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) would result in a material violation or breach of, or a default under, any material Contract agreement to which Allergan any member of the Company Group is a party or (ix) prepare or provide Excluded Information. In addition, no action, liability or obligation of the Company Group or any of its Subsidiaries is a partyRepresentatives pursuant to any certificate, agreement, arrangement, document or instrument relating to the Organizational Documents Debt Financing (other than (i) to the extent contemplated with respect to Required Information, (ii) customary representation letters to auditors, (iii) in connection with Sections 7.16 and 7.17 or (iv) customary authorization letters (including with respect to the presence or absence of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all material non-public or other confidential information provided by or and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing based on behalf of Allergan or financial information and data derived from the Company’s historical books and records)) will be effective until the Closing Date, and the Company Group will not be required to take any of its Subsidiaries or Representatives action pursuant to this Section 7.9 any certificate, agreement, arrangement, document or instrument (other than (i) to be kept confidential in accordance the extent contemplated with the Confidentiality Agreement; providedrespect to Required Information, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained (ii) customary representation letters, (iii) in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel Sections 7.16 and the Takeover Rules.7.17 or
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Herc Holdings Inc), Agreement and Plan of Merger (Herc Holdings Inc)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsThe Company shall, and shall cause the Company Subsidiaries to, and each of its the Company and the Company Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officersRepresentatives to, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, efforts to provide to AbbVie and its Subsidiaries such assistance cooperation as may be is reasonably requested by AbbVie in writing that is customary Parent in connection with the arranging, obtaining and syndication Financing or the satisfaction of the Financing, including using reasonable best efforts Parent Credit Agreement Condition; provided that such requested cooperation does not unreasonably interfere with respect tothe business and operations of the Company and the Company Subsidiaries. Such cooperation shall include:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to participate (Aand cause senior management and appropriate Representatives of the Company to participate) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, calls, presentations, road shows, drafting sessionslender presentations, due diligence sessions (including accounting due diligence sessions), drafting sessions and sessions with rating agencies at reasonable times and places and otherwise cooperate with Parent’s marketing efforts for any of the Financing and assist Parent in obtaining ratings in connection with the Financing, including direct contact between appropriate members of senior management of the Company, on the one hand, and the actual and potential financing sources, on the other hand; provided that Representatives of the Company shall not be required to participate in more than three meetings with lenders or prospective lenders, investors ;
(ii) using reasonable best efforts to assist with the timely preparation and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation negotiation of customary materials for registration statementsrating agency presentations and materials, offering documentscredit agreements, private placement memorandaindentures, bank information memoranda, syndication documents and materials, lender presentations, offering documents, prospectuses, rating agency presentations memoranda, investor presentations, purchase agreements, guarantees, pledge and security documents, closing certificates, and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable typeFinancing;
(iii) providing using reasonable best efforts to AbbVie’s legal counsel and its independent auditors such customary documents and other customary provide information relating to Allergan the Company to assist Parent with the preparation of pro forma financial information and its Subsidiaries pro forma financial statements for Parent, and with the preparation of projections; it being agreed that Parent shall provide (A) the proposed aggregate amount of debt and equity financing, together with assumed interest rates, dividends (if any) and fees and expenses relating to the incurrence of such debt or equity financing, (B) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments in each case arising from the Merger and (C) all information relating to Parent ((A) and (B), the “Parent Pro Forma Information”), it being understood that Parent is solely responsible for the preparation of any pro forma financial statements and information;
(iv) using reasonable best efforts to (A) execute and deliver any pledge and security documents, supplemental indentures, currency or interest hedging arrangements, other definitive financing documents, or other certificates or documents as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating by Parent; (B) give Parent reasonable access to the Financing;
offices, properties, books, records and other information of the Company and the Company Subsidiaries to facilitate the granting of security in any collateral; (ivC) causing Allergan’s independent auditors to provide customary cooperation assist Parent in obtaining environmental assessments, surveys and title insurance; (D) assist with the provision of the insurance certificates and endorsements; and (E) otherwise reasonably facilitate the pledging of collateral and the granting of security interests in respect of the Financing;
(v) obtaining using reasonable best efforts to furnish Parent with the consents Company Financing Information and such other information in the possession of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors Company, in each case as experts in any Marketing Material and registration statements and related government filings filed or used reasonably requested in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with at the accounting due diligence activities request of ▇▇▇▇▇▇,
(1) delivering notices of prepayment in respect of the Financing Sources;
Company Credit Agreement, the Company Granite Note (viiif not repaid prior to the Closing) causing or any other applicable Indebtedness (including mortgages) of the Financing to benefit from Company and the existing lender relationships Company Subsidiaries (which shall be delivered at Parent’s request in advance of Allergan and its Subsidiaries;
(viiithe Closing Date so long as they are contingent upon the occurrence of the Closing) providing documents within the time periods reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);Parent,
(ix2) procuring consents using reasonable best efforts to the reasonable use deliver drafts of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing Payoff Documentation at least three (3) Business Days prior to the Closing and arrange for delivery of executed Payoff Documentation at least one (1) Business Day prior to Closing (subject to Parent funding the amount required to effect such payoff at Closing),
(3) using reasonable best efforts to take all other reasonable actions reasonably requested by Parent (including actions to make available cash of the Company and the Company Subsidiaries that is reasonably available for such purposes) to facilitate the payoff, discharge and termination in full at the Closing of all amounts outstanding under any of the Company Credit Agreement or any other Indebtedness of the Company and the Company Subsidiaries and the release of all related Liens on the assets of the Company or any Company Subsidiaries (it being understood that the Company has no obligation to have available any specific amount of cash for such purposes), and
(4) using reasonable best efforts to assist Parent in connection with the unwinding or novation at the Effective Time of any swaps or ▇▇▇▇▇▇ to which the Company or any of the Company Subsidiaries is a party and designated by Parent (notice of which may be delivered at Parent’s request in advance of the Completion Closing Date so long as permitted by the underlying swap or hedge documentation to be contingent upon the occurrence of the Closing and no actions shall be required which would obligate the Company or the Company Subsidiaries to complete such documentation unwind or novation prior to the occurrence of the Closing Date); it being understood that Parent is responsible for paying any amounts required to effect any such unwinding or novation (such notices, together with the notices described in clause (1) and other clause (3), “Financing Termination Notices”).
(vii) to the extent required by the Financing providers, executing and delivering customary authorization letters to the Financing providers authorizing the distribution of information regarding the Company to prospective lenders or investors in connection with the Financing and containing a customary representation that the public side versions of such documents do not include material non-public information about Allergan the Company or the Company Subsidiaries or their securities, and a customary representation as to the accuracy of the information relating to the Company contained in the disclosure and marketing materials related to the Financing (“Financing Authorization Letters”);
(viii) to the extent required by the Financing providers, using reasonable best efforts to cause its Subsidiaries as is independent auditors to provide customary assistance and customary comfort letters in connection with any Capital Markets Financing;
(ix) using reasonable best efforts to (A) take actions requested by Parent to enable Parent to benefit from the Company’s existing lending relationships in connection with the marketing and syndication of the Financing, (B) provide the Financing Entities with any information regarding the Company reasonably requested in writing connection with their performance of due diligence in connection with the Financing, including any information related to the Company Commitment Letter Properties reasonably necessary for the Committed Financing, and (C) assist Parent in obtaining credit ratings;
(x) to the extent required or customary for the Financing, using reasonable best efforts to take all reasonable and customary actions necessary and requested by AbbVie Parent to (A) permit the Financing providers to evaluate the Company and the Company Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements, or in connection with collateral audits or due diligence examinations, and (B) permit Parent to establish bank and other accounts and blocked account agreements and lock-box arrangements in connection with the Financing;
(xi) to the extent requested at least ten (10) Business Days in advance of prior to the Completion Closing Date in connection with and required by the Financing Entities, furnishing Parent and the Financing Entities at least three (3) Business Days prior to the Closing Date with all documentation and other information relating to the Company and the Company Subsidiaries that relates any lender providing or arranging the Financing has determined is required to comply with requirements by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything Act, and beneficial ownership Laws, including a customary beneficial ownership certification in relation to the contrary Company;
(xii) so long as the Commitment Letter remains in this Section 7.9(afull force and effect and the Parent is pursuing the Committed Financing, with respect to the Company Commitment Letter Properties and other properties in connection with the Financing, using reasonable best efforts to obtain third-party reports (including the reliance language contained therein): (A) engineering reports, (B) Phase I environmental reports (and Phase II if recommended), (C) a seismic report (if applicable), including SEL/SUL calculations, (D) title insurance and survey with such endorsements as Lender shall reasonably request, (E) zoning report and (F) FIRREA compliant appraisals, in each case in form and substance reasonably acceptable to the Financing Entities;
(xiii) to the extent required by or Section 7.9(bcustomary for the Financing, using reasonable best efforts to cooperate in the preparation of a transaction steps memorandum in connection with the Financing, solely with respect to portions relating to the Company and Company Subsidiaries;
(xiv) belowto the extent required by or customary for the Financing, using reasonable best efforts to facilitate the pledging of the Company Commitment Letter Properties and other collateral in connection with the Financing; provided that (A) none of Allergan nor 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 their officers or employees involved;
(xv) to the extent reasonably requested by the Financing Parties, using reasonable best efforts to provide estoppels (including from any tenants, ground lessors or condominium or REA counterparties) and SNDAs relating to the Company Commitment Letter Properties;
(xvi) using reasonable best efforts to provide Parent, the Financing Parties and their respective Representatives reasonably timely and customary access, upon reasonable request and notice, to conduct site visits and inspections at the Company Commitment Letter Properties and other properties as Parent or the Financing Parties reasonably deem necessary during normal business hours to complete their reasonable and customary due diligence; provided that (A) the same shall not unreasonably interfere with the normal operations of the Company Commitment Letter Properties and such other properties and (B) the Company shall be required entitled to take or permit have representatives present at all times during such site visits; and
(xvii) using reasonable best efforts to assist Parent in satisfying the taking of any action Parent Credit Agreement Condition prior to the Closing Date.
(b) Notwithstanding anything in this Section 7.16 and Section 7.17 to the contrary, in fulfilling its obligations pursuant to this Section 7.9(a7.16 and Section 7.17, the Company (and the Company Subsidiaries) or Section 7.9(b) below to will not be required to: (i) prior to the Effective Time, pay or incur any commitment or other fee or incur any liability out-of-pocket expense (other than third-party costs and customary expenses that are (not including any fees or similar amounts payable to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrumentsources, or agree payments to any change to or modification rating agencies, all of any existing agreement, certificate, document or instrument, in each case that would which shall be effective prior to the Completion Date or would be effective if the Completion does not occur (except (xmade by Parent) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required cooperation described in this Section 7.16 or Section 7.17 that are promptly reimbursed by Section 7.9(b▇▇▇▇▇▇), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith ; (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (vii) be an issuer or other obligor with respect to the Financing prior to the CompletionClosing Date, pass resolutions or consents or approve or authorize the execution of, or execute, the Financing or the definitive documentation or other agreements related thereto (viother than (A) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projectionsFinancing Termination Notices, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), Authorization Letters and (C) neither Allergan nor Specified Consent and Tender Consent Documentation); (iii) cause any director, officer or employee of the Company or any of its the Company Subsidiaries shall be required to incur any personal liability; (iv) take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (iiA) cause any representation or warranty in this Agreement to be breached by Allergan the Company (unless Parent waives such breach prior to the Company or its Subsidiaries taking such action), (B) conflict with the organizational documents of the Company or any of its Subsidiaries (unless waived by AbbVie)as in effect on the date hereof) or any applicable Laws, (iiiC) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries reasonably be expected to incur any personal liability or (iv) result in a material violation or breach of, or a default (with or without notice, lapse of time, or both) under, any material Contract contract existing as of the date hereof to which Allergan the Company or any of its Subsidiaries is a partyparty or (D) require the Company, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or any of their Representatives to provide access to or disclose information that is legally privileged or (v) prepare any financial statements (other than the Company Financing Information) that are not prepared in the ordinary course of its financial reporting practice.
(c) Parent shall, upon request by the Company or the Company Special Committee, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses and attorney’s fees incurred by the Company (or any of the Company Subsidiaries) in connection with fulfilling its obligations pursuant to this Section 7.9 to be kept confidential in accordance with 7.16. Parent shall indemnify and hold harmless the Confidentiality Agreement; providedCompany and the Company Subsidiaries and its and their respective directors, that Allergan acknowledges officers and agrees that the confidentiality undertakings that will be obtained employees from and against any and all liabilities, losses, damages, claims, costs and expenses actually suffered or incurred by them in connection with syndication the Financing or any actions taken pursuant to this Section 7.16, except in the event such loss or damage results from (i) the gross negligence, willful misconduct, fraud or bad faith of the Company or the Company Subsidiaries or, in each case, their respective Representatives or (ii) any information provided to Parent in writing by the Company or the Company Subsidiaries for inclusion in any materials relating to the Financing.
(d) In connection with a Capital Markets Financing, (x) the Company will use its reasonable best efforts, and will cause each of the Company Subsidiaries to use its reasonable best efforts, to update any Company Financing Information provided to Parent and the Financing providers as may be necessary so that such Company Financing Information (i) is Compliant and (ii) meets the applicable requirements set forth in the definition of “Company Financing Information”, in each case for the period contemplated in the definition of Compliant; and (y) the Company will notify Parent if any of the Company Financing Information or any other information provided pursuant to this Section 7.16 is found to have contained any untrue statement of a material fact or to have omitted to state a material fact necessary in order to make the statements contained therein not materially misleading.
(e) For the avoidance of doubt, Parent may, to most effectively access the financing markets, require the cooperation of the Company and the Company Subsidiaries under this Section 7.16 at any time, and from time to time and on multiple occasions, between the date hereof and the Closing Date so long as such cooperation would not reasonably be expected to delay, hinder or prevent the Closing.
(f) The Company hereby consents to the use of its and the Company Subsidiaries’ logos in connection with the Financing so long as such logos are used solely in a form customary for use in manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements Company or any of the Panel and Company Subsidiaries or the Takeover Rules.reputation or goodwill of the Company or any of the Company
Appears in 2 contracts
Sources: Merger Agreement (Diversified Healthcare Trust), Merger Agreement (Office Properties Income Trust)
Financing Cooperation. (a) Until Prior to the earlier of Effective Date, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its Subsidiaries to Company Subsidiary to, use its commercially reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officersprovide, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance cooperation as may be reasonably requested by AbbVie in writing the Parent or its financing sources (provided that is customary such requested cooperation does not unreasonably interfere with the ongoing operations of Company and Company Subsidiaries) in connection with the arranging, obtaining and syndication of financings contemplated under any debt commitment letter obtained by the FinancingBuyers prior to the Effective Time, including using commercially reasonable best efforts with respect to:
to (i) participating cause appropriate officers (including senior management), employees, representatives and advisors to be available to meet during normal business hours with ratings agencies, analysts, investment bankers and prospective lenders and investors in presentations, meetings, road shows and assisting due diligence sessions, (ii) provide reasonable assistance with the due diligencepreparation of any ratings presentations, syndication information memoranda, offering memoranda or other marketing and disclosure documents and customary information in connection therewith, (iii) provide any financing sources of the FinancingParent, USCo, the Purchaser or US New Opco with reasonable access to the properties, books and records of the Company and the Company Subsidiaries (including using reasonable best efforts with respect to (A) for the participation by members purpose of management conducting a customary commercial finance audit examination and field examination of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions the Company and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable noticethe Company Subsidiaries), (Biv) assisting with AbbVie’s preparation subject to the occurrence of customary materials for registration statementsthe Arrangement, offering in the case of the Company Subsidiaries only, execute and deliver loan agreements, pledge, security and other collateral documents, private placement memorandaintercreditor agreements, bank information memorandacustomary certificates, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and any other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary definitive financing documents and other related customary information relating to Allergan and its Subsidiaries loan documents as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
by Purchaser or its financing sources, (v) obtaining provide the consents Parent, USCo, the Purchaser or US New Opco and its financing sources with all financial information and projections as may be reasonably requested by the Parent, USCo, the Purchaser or US New Opco or its financing sources (including pro forma consolidated and consolidating balance sheets and related pro forma consolidated and consolidating statements of Allergan’s independent auditors to use their audit reports income of the Company and the Company Subsidiaries as of and for the twelve-month period ending on the audited Historical Financial Statements last day of Allergan and the most recently completed four-fiscal quarter period ended at least forty-five (45) days before the Effective Date, prepared by the Company after giving effect to references to the transactions herein contemplated as if the transactions had occurred as of such independent auditors as experts date (in any Marketing Material and registration the case of such balance sheets) or at the beginning of such period (in the case of such other statements of income), forecasts prepared by the Company of balance sheets, income statements and related government filings filed or used in connection with cash flow statements for each month for the Financing;
first twelve months following the Effective Date and annually for each of the years 2014, 2015, 2016, 2017 and 2018 and borrowing base availability projections for the first twelve months following the Effective Date, including projected letter of credit balances), (vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with provide the accounting due diligence activities of Parent, USCo, the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan Purchaser or US New Opco and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance financing sources with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of days prior to the Completion Effective Date in connection with the Financing that relates to as required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationlimitation the PATRIOT Act, and (vii) direct its independent accountants and counsel to provide customary and reasonable assistance to the Parent, USCo, the USA PATRIOT ACT. Notwithstanding anything to the contrary Purchaser or US New Opco and its financing sources, including in this Section 7.9(a) or Section 7.9(b) belowconnection with providing customary comfort letters and opinions of counsel; provided, however, that neither Company nor any of its Subsidiaries shall (A) none of Allergan be required to pay any commitment or other similar fee, (B) have any liability or obligation under any credit agreement or other agreement or document related to the debt financing (or alternative financing that the Purchaser may raise in connection with the transactions contemplated by this Agreement) or (C) be required to incur any other liability or expense in connection with the debt financing (or any alternative financing that the Purchaser may raise in connection with the transactions contemplated by this Agreement) unless reimbursed or reasonably satisfactorily indemnified by the Purchaser. Neither Company nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to by this Section 7.9(a) or Section 7.9(b) below 4.14 to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or to disclose information that Allergan that, in the reasonable opinion of Company’s legal counsel, may result in a violation of any Applicable Law or Order or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry binding Contract entered into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none date of this Agreement. Company shall use its commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances in which the restrictions of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulespreceding sentence apply.
Appears in 1 contract
Financing Cooperation. (a) Until Prior to the earlier of Closing or, if earlier, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 97, Allergan shall the Company will, and will cause its Subsidiaries to, use its reasonable best effortsefforts (at Parent’s sole cost and expense) to, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie the appropriate Representatives of the Company and its Subsidiaries to, provide such assistance cooperation as may be is customary and reasonably requested by AbbVie in writing that is customary Parent in connection with any Debt Financing, which cooperation will include (i) furnishing Parent with the arranging, obtaining Required Information and syndication of other customary or pertinent information regarding the Company and its Subsidiaries reasonably requested by Parent (or the Debt Financing Sources) in connection with such Debt Financing, including using reasonable best efforts with respect to:
preliminary or “flash” information if requested, (iii) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of senior management of Allergan with appropriate seniority participating in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and drafting sessions (in each case, which may be virtual) with prospective lenders, investors providers or potential providers of the Debt Financing and rating agencies, agencies during normal business hours and at mutually agreed times and at locations reasonably acceptable to Allergan and upon reasonable noticelocations, (Biii) reasonably assisting with AbbVie’s Parent in the preparation of customary materials for customarily requested to be used in connection with obtaining the Debt Financing, including rating agency presentations, road show materials, bank information memoranda, registration statements, prospectuses, offering memoranda, bank syndication materials, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations memoranda and similar documents customarily required in connection with the Financing (collectivelyDebt Financing, “Marketing Material”) including the marketing and due diligence sessions related theretosyndication thereof, (Civ) delivering providing customary information regarding the Company and consenting its Subsidiaries to Parent to assist Parent with Parent’s preparation of pro forma financial statements (it being understood that the inclusion Company shall not be required to provide pro forma financial statements, projections or incorporation in any SEC filing related to information regarding any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other post-Closing pro forma adjustments, although the Financing Company will provide information regarding the Company and its Subsidiaries reasonably requested by Parent so that Parent can calculate or estimate such pro forma amounts), (v) reasonably cooperating with the marketing efforts for any portion of the historical audited consolidated financial statements Debt Financing, including using its reasonable best efforts to ensure that any syndication efforts benefit from its existing lending relationships and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings using reasonable best efforts to assist Parent in obtaining any credit ratings in connection with the Marketing Material (in each caseDebt Financing, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ providing customary comfort authorization letters authorizing the distribution of information provided by the Company or its Subsidiaries to prospective lenders and assistance with containing a customary representation to the accounting due diligence activities Debt Financing Sources for the Debt Financing that such information provided by the Company or its Subsidiaries does not contain a material misstatement or omission and containing a representation to the Debt Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Financing Sources;
Company or its Subsidiaries or its or their securities, (vii) causing the Financing independent registered public accounting firms of the Company to benefit from (A) render customary “comfort letters” (including customary negative assurance comfort and change period comfort) with respect to financial information regarding the existing lender relationships of Allergan Company and its Subsidiaries;
Subsidiaries contained in any materials relating to the Debt Financing, (B) provide consents for use of their reports and opinions in any documents filed or furnished by Parent with the SEC or in any other materials or disclosures relating to the Debt Financing in which financial information of the Company and its Subsidiaries is included and (C) participate in a reasonable number of due diligence sessions (which may be virtual), (viii) providing documents reasonably requested by AbbVie or the Financing Sources relating delivering information and documentation related to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of Company and its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of prior to the Completion Closing Date such documentation and other information about Allergan and its Subsidiaries as is required and reasonably requested in writing by AbbVie the Debt Financing Sources at least ten (10) 10 Business Days in advance of prior to the Completion Closing Date in connection with the Financing that relates respect to compliance under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationthe U.S.A. Patriot Act of 2001 and rules adopted by the Financial Crimes Enforcement Network of the U.S. Treasury Department, (ix) assisting with obtaining releases of existing Liens, (x) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent to permit the consummation of the Debt Financing, (xi) cooperating in satisfying the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent the satisfaction of such condition requires the cooperation of, or is within the control of, the USA PATRIOT ACT. Notwithstanding anything Company and its Subsidiaries and (xii) providing customary information regarding the Company and its Subsidiaries to Parent to assist Parent with the contrary preparation of definitive Debt Financing Documents (including any guarantee, supplemental indentures, currency or interest rate hedging arrangements, other definitive financing documents, or other certificates or documents as may be reasonably requested by Parent or the Debt Financing Sources), and the schedules and exhibits thereto, in each case, as may be reasonably requested by ▇▇▇▇▇▇.
(b) Nothing in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of 5.11 will require the Company and its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) waive or amend any terms of this Agreement, pay any commitment or other fee or incur similar fee or agree to pay any liability other fees or reimburse any expenses or otherwise issue or provide any indemnities prior to the Closing Date for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent; (ii) without limiting its obligations to deliver conditional redemption notices, executed Payoff Letters, prepayment and termination notices, Lien release documentation and other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan customary documentation pursuant to Section 7.9(c))5.19 and Section 5.20, (ii) execute enter into, approve, modify or deliver perform any definitive financing documents agreement or commitment or distribute any other agreement, certificate, document or instrument, or agree cash (except to any change the extent subject to or modification of any existing agreement, certificate, document or instrument, in each case concurrent reimbursement by Parent) that would will be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), Closing Date; (iii) provide access to or disclose information that Allergan or give any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, indemnities in connection with the entry into an Allergan Supplemental Indenture required Debt Financing that are effective prior to the Closing Date, except to the extent previously agreed in writing by Section 7.9(bthe Company; (iv) except to the extent contemplated with respect to Required Information (and without limiting the obligation to assist in preparation of pro forma financial statements), Allergan shall, prepare separate financial statements for the Company and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under extent not customarily prepared by the applicable Indenture that Company and its Subsidiaries and to the Allergan Supplemental Indenture amends if extent such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and preparation would be accurate in light of the facts and circumstances at the time delivered)), unduly burdensome or change any fiscal period; (v) adopt any resolutions, execute any consents or otherwise take any corporate or similar action to be an issuer or other obligor with respect to the Financing effective prior to the Completion, Closing; (vi) commence provide or obtain any Allergan Note Offers and Consent Solicitations legal opinion on or prior to the Closing; (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (A) conflict with or violate its Organizational Documents or any applicable laws in any material respect or (B) unreasonably interfere with the ongoing business or operation of the Company and its Subsidiaries, taken as a whole, in any material respect; or (viii) prepare or provide Excluded Information. In addition, no action, liability or obligation of the Company and its Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to the Debt Financing (other than (i) interfere unreasonably to the extent contemplated with the business or operations of Allergan or its Subsidiariesrespect to Required Information, (ii) cause any customary representation or warranty in this Agreement letters to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie)auditors, (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability in connection with Section 5.19 and Section 5.20 or (iv) result in a customary authorization letters (including with respect to the presence or absence of material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public information and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing based on financial information and data derived from the Company’s historical books and records)) will be effective until the Closing Date. Except in connection with the delivery of a chief financial officer certificate in connection with any Required Information, nothing in this Section 5.11 will require (1) any officer, employee or Representative of the Company and its Subsidiaries to deliver any certificate or opinion or take any other confidential action under this Section 5.11 that would reasonably be expected to result in personal liability to such officer, employee or Representative; or (2) the Company Board to approve any Debt Financing or Contracts related thereto, effective prior to the Closing Date.
(c) The Company shall not be required to provide any information the disclosure of which is prohibited or restricted under applicable Law or is legally privileged; provided that Parent is notified of the nature of such information for which such disclosure is prohibited.
(d) Parent shall (x) at the Closing (or, if the Closing does not occur, promptly), upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company in connection with the cooperation of the Company contemplated by this Section 5.11 (other than the preparation of the Company’s financial statements in the Ordinary Course of Business) and (y) indemnify and hold harmless the Company and its Representatives from and against any and all damages, losses, charges, liabilities, claims, demands, actions, suits, proceedings, payments, judgments, settlements, assessments, deficiencies, Taxes, interest, penalties and costs and expenses suffered or incurred by them in connection with the arrangement of any Debt Financing (other than to the extent arising from inaccuracy of any information furnished in writing by or on behalf of Allergan the Company, its Affiliates or any its or its Affiliates’ Representatives or the gross negligence, bad faith, willful misconduct or fraud of the Company, its Affiliates, or its or its Affiliates’ Representatives). The Company hereby consents to the use of its and its Subsidiaries’ Trademarks in connection with the Debt Financing; provided that all such uses are in a manner that is not intended to or reasonably likely to harm or disparage the Company or its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication reputation or goodwill of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesCompany or its Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Hanesbrands Inc.)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan The Company shall use its reasonable best effortsefforts to, and shall cause each of its Subsidiaries to use its their reasonable best effortsefforts to, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, Representatives to use their reasonable best effortsefforts to, to provide to AbbVie and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing all cooperation that is customary in connection with the arranging, obtaining and syndication arrangement of the FinancingDebt Financing as may be reasonably requested in writing by Parent (provided that such requested cooperation does not unreasonably interfere with the conduct of the business and ongoing operations of the Company and its Subsidiaries), including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting due diligence sessions, due diligence sessions lender presentations and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (Bii) assisting with AbbVie’s the preparation of customary materials for registration statements, offering documents, private placement memorandarating agency presentations, bank information memoranda, prospectuses, rating agency presentations memoranda and similar documents required in connection with the Debt Financing (collectivelyprovided that any such rating agency presentations, “Marketing Material”) bank information memoranda and due diligence sessions related theretosimilar documents shall contain disclosure reflecting the Surviving Corporation or its Subsidiaries as the obligor), (Ciii) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie Parent and its Debt Financing Sources sources with historical financial (A) such pertinent and other customary information (collectivelyother than financial information), the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject reasonably available to any “going concern” qualifications)the Company, or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of regarding the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan Company and its Subsidiaries as may be reasonably requested in connection writing by Parent to consummate the Debt Financing and (B) historical audited and unaudited financial statements as filed with their delivery of any customary negative assurance opinions the SEC, financial data as may be reasonably requested in writing by Parent and customary comfort letters relating to the Financing;
audit reports, (iv) causing Allergan’s independent auditors using commercially reasonable efforts to provide customary cooperation with the Financing;
obtain accountants’ comfort letters, legal opinions, surveys and title insurance as reasonably requested in writing by Parent and (v) obtaining executing and delivering any customary pledge and security documents, other definitive financing documents or other certificates or documents requested in writing, including, to the consents of Allergan’s independent auditors to use their audit reports on extent the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with are true therein, a customary solvency certificate by the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities chief financial officer of the Financing Sources;
Company (viiprovided that (A) causing none of the Financing to benefit from documents and certificates shall be executed and delivered except at the existing lender relationships Closing, (B) the effectiveness thereof shall be conditioned upon, or become operative after, the occurrence of Allergan and its Subsidiaries;
the Closing, (viiiC) providing documents reasonably requested by AbbVie or none of the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan Company or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries Representatives shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability in connection with the Financing prior to the Effective Time and (other than thirdD) no personal liability shall be imposed on the officers, directors, employees or agents involved).
(b) Parent shall promptly, upon request by the Company, reimburse the Company for all out-party of-pocket costs and expenses that are to be promptly reimbursed (including reasonable attorneys’ fees) incurred and documented by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Company or any of its Subsidiaries reasonably determines would jeopardize in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.06 and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any attorney-client privilege and all losses, damages, claims, costs or expenses suffered or incurred by any of Allergan them in connection with the arrangement of the Financing and any information used in connection therewith, except with respect to any information provided by the Company or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules.
Appears in 1 contract
Financing Cooperation. (ai) Until Prior to the earlier of Closing, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall Company will use its reasonable best efforts, and shall will cause each of its the Company Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be Parent, at Parent’s sole expense, with all cooperation reasonably requested by AbbVie Parent to assist it in writing that is customary in connection with the arrangingarrangement, obtaining syndication and syndication consummation of the Debt Financing, including using reasonable best efforts with respect to:
. Such assistance shall include (i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);arrangements):
(iiA) timely furnishing AbbVie participation by the senior management team of the Company in the marketing activities undertaken in connection with the marketing of the Debt Financing, including the preparation of customary marketing and its Financing Sources with historical financial syndication documents and other customary information materials (all such documents and materials, collectively, the “Financing InformationDocuments”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or ;
(B) reasonably necessary preparing and furnishing to permit AbbVie to prepare pro forma Parent and the Financing Sources as promptly as practicable all available pertinent financial statements customary for Financings information (including Table of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents Contents financial estimates, budgets, forecasts and other customary information forward-looking information) and disclosures relating to Allergan and its Subsidiaries the Company as may be reasonably requested by Parent to assist in connection with their delivery preparation of any the Financing Documents, including providing customary negative assurance opinions authorization letters and customary comfort letters relating to the Financingconfirmations;
(ivC) causing Allergan’s independent auditors designating appropriate members of senior management of the Company to provide participate in a reasonable number of lender and investor presentations (including a customary cooperation bank meeting with the Financing Sources acting as lead arrangers or agents for, and material prospective Financing Sources for, the Debt Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used sessions with ratings agencies in connection with the Financing, and due diligence sessions;
(viD) obtaining Allergan’s independent auditors’ customary comfort letters participation by senior management of the Company in the negotiation of, and assistance assisting Parent in connection with the accounting due diligence activities preparation of, and executing and delivering, definitive financing documents, including any pledge and security documents, guarantee and collateral documents and other certificates and documents as may be reasonably requested by Parent or the Lender, and otherwise reasonably facilitating the pledging of collateral and the granting of security interests in respect of the Financing SourcesDebt Financing, it being understood that such documents will not take effect until the Effective Time;
(viiE) causing furnishing Parent and the Financing Lender, as promptly as practicable (but in any event, with respect to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries financial statements required to be repaid filed with the Company’s Form 10-Q or refinanced on Form 10-K, as applicable, by no later than the Completion Date filing deadline required therefor under the Exchange Act), with the Required Information and all other financial information (including executive level financial analyses for the Company and the release of related liens and/or guarantees (if any) effected therebyCompany Subsidiaries, including customary payoff letters on a consolidated basis, with respect to each calendar month ended during the Interim Period), business and (to other financial data, audit reports and other information regarding the extent required) evidence that notice of any such repayment has been timely delivered to Company and the holders of such indebtedness, in each case in accordance with the terms Company Subsidiaries of the definitive documents governing such indebtedness type and for the time periods that would be required for syndication of Debt Financing (provided that any such notice or payoff letter Parent shall be expressly conditioned on solely responsible for the Completionpreparation of pro forma financial statements and such pro forma financial statements shall reflect the Surviving Corporation and/or its Subsidiaries as the obligor);
(ixF) procuring consents 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 with respect to the reasonable Indebtedness required by the Debt Commitment Letter to be terminated, in each case, reasonably satisfactory to Parent, and giving any other necessary notices and otherwise cooperating in the prepayment in full and termination in full of any such Indebtedness and the termination in full of all guaranties and security interests in connection therewith;
(G) consenting to the use of all logos of Allergan’s logos the Company and the Company Subsidiaries in connection with the Debt Financing (provided that so long as such logos (i) are used solely in a manner that is not intended to and is not reasonably or likely to harm or disparage Allergan the Company or its any of the Company Subsidiaries or the reputation or goodwill of Allergan the Company or any of the Company Subsidiaries and (ii) are used solely in connection with a description of the Company, its Subsidiaries)business and products or the transactions contemplated hereby; and
(xH) providing at least three (3) Business Days in advance of furnishing Parent and the Completion Date such Lender with all documentation and other information about Allergan related solely to the Company and its Company Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates U.S. regulatory authorities pursuant to applicable “know your customer” and anti-money laundering rules and regulations. Table of Contents
(ii) Notwithstanding the provisions of Section 5.12(e)(i) or any other provision of this Agreement, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary nothing in this Section 7.9(a) Agreement will require the Company or Section 7.9(b) below, any of the Company Subsidiaries to: (A) none waive or amend any terms of Allergan nor any of its Subsidiaries shall be required this Agreement or agree to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee fees or bear or reimburse any expenses or make any payment to obtain consent or to incur any liability with respect to or cause or permit any Encumbrance to be placed on any of its assets prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent; (B) enter into any definitive agreement before the occurrence of the Closing; (C) give any indemnities the effectiveness of which is not conditioned on the occurrence of the Closing; (D) provide any information the disclosure of which is prohibited or restricted under applicable Law, is legally privileged or would violate confidentiality obligations owing to third parties; or (E) take any action that will conflict with or violate the Company Charter Documents or any applicable Laws or would result in a violation or breach of, or default under, any Company Contract. In addition, (1) no action, liability or obligation of the Company, any Company Subsidiary or any of their respective directors, officers, employees, agents and other Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to the Debt Financing (other than third-party costs the authorization and expenses that are representation letters referred to above) will be promptly reimbursed by AbbVie upon request by Allergan effective until the Effective Time, and neither the Company nor any Company Subsidiary will be required to take any action pursuant to Section 7.9(c))any certificate, (ii) execute or deliver any definitive financing documents or any other agreement, certificatearrangement, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur instrument (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be including being an issuer or other obligor with respect to the Financing Debt Financing) that is not contingent on the occurrence of the Closing or that must be effective prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures)Effective Time, and (C2) neither Allergan nor any of customary bank information memoranda required in relation to the Debt Financing will contain disclosure and financial statements reflecting Parent or its Subsidiaries shall be required to take or permit as the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty obligor. Nothing in this Agreement to be breached by Allergan will require: (x) any directors, officers, employees, agents and other Representatives of the Company or any Company Subsidiary to deliver any certificate or opinion or take any other action pursuant to Section 5.12(e)(i) or any other provision of its Subsidiaries (unless waived by AbbVie), (iii) cause any this Agreement prior to the Effective Time or that could reasonably be expected to result in personal liability to such director, officer officer, employee, agent or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability other representative; or (ivy) result the members of the Company Board to approve any financing or Contracts related thereto prior to the Effective Time. Except for the representations and warranties of the Company set forth in a material violation or breach of, or a default under, any material Contract to which Allergan or any Article 3 of its Subsidiaries is a partythis Agreement, the Organizational Documents Company shall not have any liability to Parent in respect of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public financial statements or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules5.12.
Appears in 1 contract
Sources: Merger Agreement (NCI, Inc.)
Financing Cooperation. (a) Until Prior to the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9Closing Date, Allergan Broadcom shall use its reasonable best effortsprovide, and shall cause each of its Subsidiaries to use its reasonable best effortsprovide, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, Representatives to provide to AbbVie Avago all cooperation reasonably requested by Avago in connection with the Debt Financing or any replacement, amended, modified or alternative financing permitted by this Agreement (collectively with the Debt Financing, the “Available Financing”), including (i) furnishing Avago the Required Financial Information by the times required by the Debt Commitment Letter and such other Financing Information and other financial and other pertinent information and disclosures regarding Broadcom and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary in connection with Avago and necessary to permit the arranging, obtaining and syndication consummation of the Available Financing, including using reasonable best efforts with respect to:
(iii) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetingsmeetings (including one-on-one meetings or conference calls with parties acting as agents or arrangers for, and prospective lenders of, the Available Financing for the transactions contemplated by this Agreement), presentations, road shows, drafting due diligence sessions, due diligence drafting sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan cooperating with the marketing or solicitation efforts of Avago and upon reasonable noticeits Financing Sources, in each case as reasonably requested by Avago and reasonably required in connection with the Available Financing, (Biii) as reasonably requested by Avago, assisting with AbbVie’s the preparation of Marketing Materials, including customary materials for registration statementsrating agency presentations, offering memoranda and bank information memoranda (including with respect to presence of absence of material non-public information relating to Broadcom and its Subsidiaries and the accuracy of the information relating to Broadcom and its Subsidiaries contained therein), lender presentations, offering documents, authorization letters, confirmations and undertakings in connection with the Financing Information, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations prospectuses and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related theretoAvailable Financing, (Civ) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated if reasonably requested by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings Avago in connection with the Marketing Material (in each caseAvailable Financing, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries providing (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice notices of any such repayment has been timely delivered or repurchase (subject to and conditioned upon the Closing) with respect to the holders of such indebtedness, in each case in accordance with Broadcom Notes and the terms of the definitive documents governing such indebtedness Broadcom Credit Agreement and (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ixB) procuring consents to the reasonable use of all of Allergan’s logos documentation and other information required in connection with the Available Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including without limitationthe Patriot Act (provided, that, such documentation and information is reasonably requested in writing by Avago at least five (5) days prior to the USA PATRIOT ACTClosing), (v) assisting in the preparation of any customary credit agreements (or amendments thereto), pledge and security documents, guarantees, indentures, purchase agreements, and other customary definitive documentation, customary closing certificates, and related deliverables relating to the Available Financing and reasonably facilitating the granting of a security interest (and perfection thereof) in collateral, guarantees, mortgages and other definitive financing documents (including title insurance) (including assisting with the execution, preparation and delivery of original stock certificates (or local equivalents) and other certificated securities that are pledged under the Available Financing and original stock powers executed in blank (or local equivalents) to the parties to the Available Financing (including, but not limited to, providing copies thereof prior to the Closing Date) and taking reasonable steps necessary to permit the Financing Sources to evaluate the assets of Broadcom and cash management and accounting systems and policies and procedures relating thereto for purposes of examining collateral arrangements (including collateral field examinations and appraisals) as well as establishing bank and other accounts and blocked account agreements and lock box arrangements, provided that no pledge should be effective until the Closing and the delivery of any such original stock certificates and other certificated securities and original stock powers shall be delivered in escrow pending release at Closing); provided, however, that, no obligation of Broadcom under any agreement, certificate, document or instrument shall be effective until the Closing, and Broadcom shall not be required to pay any commitment or other fee or incur any other liability in connection with the Available Financing prior to the Closing (except to the extent that Avago promptly reimburses (in the case of ordinary course out-of-pocket costs and expenses) or provides the prior funding (in all other cases) to Broadcom therefor), (vi) upon the reasonable request of Avago, satisfying the conditions precedent set forth in the Debt Commitment Letter to the extent the satisfaction is within the control of Broadcom, (vii) cooperating with the Financing Sources’ due diligence investigation, to the extent customary and reasonable and not unreasonably interfering with the business of Broadcom and (viii) upon the reasonable request of Avago, assist Avago in obtaining accountant’s comfort letters and legal opinions customary for financings similar to the Debt Financing.
(b) Avago acknowledges and agrees that, other than ordinary course out-of-pocket costs and expense subject to reimbursement pursuant to this Section 6.16, neither Broadcom nor any of its Subsidiaries and Representatives shall have any responsibility for, or incur any liability to, any Person under, any Debt Financing that Avago may raise in connection with the transactions contemplated by this Agreement or any cooperation provided pursuant to this Section 6.16. Avago shall promptly, upon request by Broadcom, reimburse Broadcom and its Subsidiaries, as applicable, for all reasonable and documented out-of-pocket costs and expenses (including any attorneys’ fees and Out-of-Pocket Repatriation Taxes) incurred by Broadcom or its Subsidiaries, as applicable, in connection with the cooperation of Broadcom and its Subsidiaries, as applicable, contemplated by this Section 6.16. Avago shall indemnify and hold harmless Broadcom and its Subsidiaries (and its Representatives) from and against any and all losses, damages, claims, costs, Out-of-Pocket Repatriation Taxes or other expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing or Available Financing and any information used in connection therewith (other than historical information relating to Broadcom or its Subsidiaries provided by Broadcom in writing specifically for use in the Debt Financing offering documents), in each case except to the extent such losses, damages, claims, costs or expenses arise from Broadcom’s bad faith or willful misconduct, as finally determined by a court of competent jurisdiction. Notwithstanding anything to the contrary in this Section 7.9(a) 6.16, Avago shall have no obligation to reimburse or Section 7.9(b) below, (A) none of Allergan nor any of indemnify or hold harmless Broadcom or its Subsidiaries or Representatives for Out-of-Pocket Repatriation Taxes unless the Closing shall be required fail to take occur within fourteen (14) days of the repatriation of such funds. In the event of a termination of this Agreement, Broadcom shall use reasonable best efforts to mitigate any losses, damages, claims, costs, Out-of-Pocket Repatriation Taxes or permit the taking of any action other expenses subject to reimbursement pursuant to this Section 7.9(a) 6.16, including by rescinding any dividends or other distributions declared, paid or otherwise made. For purposes of this Section 7.9(b) below to 6.16, “Out-of-Pocket Repatriation Taxes” means out-of-pocket Taxes resulting from (i) pay any commitment funds repatriated at the direction of Avago, or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreementlater event, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that such Taxes would not conflict with applicable Law and would be accurate in light have resulted but for a reduction, utilization or elimination of net operating losses, credits or other Tax attributes that may otherwise have reduced or eliminated such Taxes by reason of the facts and circumstances funds repatriated at the time delivered and direction of Avago.
(zc) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Nothing in this Section 6.16 shall require Broadcom or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (iA) unreasonably interfere unreasonably with the business or ongoing operations of Allergan Broadcom or its Subsidiaries, (iiB) cause any covenant, representation or warranty in this Agreement to be breached by Allergan Broadcom or any of its Subsidiaries, (C) require Broadcom or any of its Subsidiaries (unless waived to pay any commitment or other similar fee or incur any other expense, liability or obligation in connection with the financings contemplated by AbbVie)the Debt Commitment Letter prior to the Closing, (iiiD) cause any director, officer or employee or shareholder of Allergan Broadcom or any of its Subsidiaries to incur any personal liability liability, or (ivE) result in a material violation or breach of, or a default under, authorize any material Contract to which Allergan corporate action of Broadcom or any of its Subsidiaries that would become effective and operative prior to the Closing. Broadcom hereby consents to the reasonable use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided, that such logos shall be used solely in a manner that is a partynot intended or reasonably likely to harm, the Organizational Documents of Allergan disparage or its Subsidiaries otherwise adversely affect Broadcom or any applicable Law. AbbVie shall cause all of its Subsidiaries.
(d) All non-public or other otherwise confidential information provided by or on behalf of Allergan regarding Broadcom or any of its Subsidiaries obtained by Avago or its Representatives pursuant to this Section 7.9 to 6.16 shall be kept confidential in accordance with the Confidentiality Agreement.
(e) At the request of Holdco or Avago, subject to applicable Law and the Charter Documents of Broadcom and its Subsidiaries, Broadcom shall, and shall cause its Subsidiaries to, do all things necessary, proper or advisable (including by reasonably cooperating with the Avago Parties and the Financing Sources) to make available (by way of a dividend, a loan, or such other method, in each case as requested by Holdco or Avago) any cash, cash equivalents and marketable securities (which shall be liquidated for cash at the request of Holdco or Avago) of Broadcom and its Subsidiaries, wherever held, for the funding of the consummation of the transactions contemplated hereby, including the amounts payable in connection with the consummation of the Transactions, all related fees and expenses required to be paid as of the date of the consummation of Merger and the funds required to fund the repayment or refinancing of the Broadcom Notes and the Broadcom Credit Agreement, at least one (1) Business Day prior to the Closing Date.
(f) At the request of Holdco or Avago, Broadcom shall commence a tender and consent solicitation for the Broadcom Notes; provided, that Allergan acknowledges the consummation of such tender shall be conditioned upon the Closing and agrees that the confidentiality undertakings that will shall be obtained in connection consummated no earlier than contemporaneously with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesClosing.
Appears in 1 contract
Financing Cooperation. (a) Until Prior to the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9the Closing Date, Allergan shall use its reasonable best effortsthe Company shall, and shall cause each of its Subsidiaries to to, use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officersRepresentatives to, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, in each case to provide to AbbVie Parent and its Subsidiaries such assistance as may be with all cooperation reasonably necessary and requested by AbbVie in writing that is customary by Parent to assist in connection with the arranging, obtaining and syndication of arranging any financing to be obtained by Parent or its Affiliates at or prior to the Closing (the “Financing”), including (without limiting the foregoing):
(i) using reasonable best efforts in connection with respect to:
(i) participating in and assisting with the due diligencecausing its management team, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority and expertise, to participate in a reasonable number of meetings, presentations, road shows, drafting due diligence sessions, due diligence drafting sessions and sessions with prospective lendersrating agencies (it being understood that any such meetings, investors presentations, road shows and rating agenciessessions may be via conference call or video conference);
(ii) using reasonable best efforts in connection with reasonably cooperating with the syndication or other marketing of the Financing, at times including assisting Parent and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting any Financing Sources with AbbVie’s the preparation of (1) customary rating agency presentations, bank information memoranda, road show materials for registration statementsand offering memoranda, prospectuses or other customary marketing materials required in connection with the Financing; provided, any such documents in relation to securities shall not be issued by the Company or any of its Subsidiaries; provided, further, that any rating agency presentations, offering documents, bank information memoranda, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations prospectuses and similar documents required in connection with the Financing shall reflect the Surviving Corporation and/or their Subsidiaries (collectivelyand not the Company or its Subsidiaries) as the obligors, “Marketing Material”and (2) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated pro forma financial statements and unaudited consolidated interim forecasts of the Surviving Corporation for one or more periods following the Closing Date (which, for the avoidance of doubt, will not include or be deemed to require the Company to prepare such pro forma financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents forecasts);
(the “Historical Financial Statements”iii) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings using reasonable best efforts in connection with assisting Parent in connection with the Marketing Material preparation and registration of any pledge and security documents, supplemental indentures, currency or interest hedging arrangements and other definitive financing documents as may be reasonably requested in writing by Parent or the Financing Sources (including using reasonable best efforts to facilitate obtaining from the Company’s auditors consents of such auditors for use of their reports in any materials relating to the Financing and comfort letters from such auditors, in each case as reasonably requested in writing by Parent or the Financing Sources), and otherwise reasonably facilitating the pledging of collateral, including using reasonable best efforts to arrange for the delivery of stock certificates, and the granting of security interests in respect of the Financing, it being understood that such documents will not take effect until the Closing Date;
(iv) to the extent required in connection with the Financing, furnishing Parent, any of its Subsidiaries and the Financing Sources, as promptly as practicable, following Parent’s request in writing, with (1) (y) audited consolidated balance and related statements of income, stockholders’ equity and cash flows of the Table of Contents Company and its Subsidiaries for the fiscal year ended December 31, 2020 and any subsequent fiscal year of the Company, in each case, as applicableto the extent ended 90 days or more before the Closing Date and (z) unaudited consolidated balance sheets and related statements of income, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, cash flows of the “Financing Information”) with respect to Allergan Company and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings each fiscal quarter (other than the last fiscal quarter of a fiscal year) of the applicable typeCompany ended after December 31, including 2020 and 45 days or more before the Closing Date; (2) all Historical Financial Statements other historical financial statements, historical financial data and other customary information with respect to Allergan related audit reports for the Company and its Subsidiaries (A) of the type that would be required by Regulation S-X promulgated by the SEC and Regulation S-K under promulgated by the Securities Act if SEC for a registered public offering of securities (whether equity, equity-linked securities, or securities that are not equity-linked) of the Financing were incurred by AbbVie Company and registered its Subsidiaries on Form S-3 or private placements of debt securities under Rule 144 promulgated under the Securities Act; (3) customary “flash” or “recent developments” data; (4) such other pertinent and customary information, including audit reports of annual financial statements in each case, to the extent so required (which audit reports shall not be subject reasonably available to any “going concern” qualifications)the Company, or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of regarding the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan Company and its Subsidiaries as may be reasonably requested by Parent in writing to the extent that such information is of the type and form customarily included in a prospectus, registration statement or offering memorandum for the issuance of securities (whether equity, equity-linked securities or securities that are not equity-linked) pursuant to a registration statement filed with the SEC, an offering pursuant to Rule 144A promulgated under the Securities Act or an offering pursuant to some other exemption under the Securities Act, including, without limitation, historical financial statements of the Company necessary to prepare pro forma financial statements for historical periods otherwise necessary to receive from the Company’s independent accountants (and any other accountants to the extent that financial statements audited or reviewed by such accountants are or would be included in such offering memorandum or prospectus), customary “comfort” (including “negative assurance” comfort), together with drafts of customary comfort letters that such independent accountants are prepared to deliver, subject to completion of customary procedures, upon the “pricing” of any securities (whether equity, equity-linked securities or securities that are not equity-linked), and the closing of the offering thereof with respect to the historical financial information of the Company and its Subsidiaries to be included in such prospectus, registration statement or offering memorandum; and (5) information customarily required in connection with their delivery a confidential information memorandum or bank presentation in respect of any customary negative assurance opinions and customary comfort letters relating to Financing, in each case customarily used for the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with syndication of the such Financing;
(v) obtaining using reasonable best efforts in connection with cooperating with Parent or any of its Subsidiaries to (x) facilitate the consents pledging of Allergan’s independent auditors to use their audit reports collateral on the audited Historical Financial Statements of Allergan Closing Date and to references to such independent auditors as experts in any Marketing Material (y) obtain customary and registration statements corporate and related government filings filed or used facilities ratings, consents, landlord waivers, and other customary deliverables required by the Financing Sources in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters prior to the Closing Date, using reasonable best efforts in connection with furnishing Parent and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates regulatory authorities pursuant to applicable “know your customer” and anti-money laundering rules and regulations;
(vii) using reasonable best efforts in connection with the delivery of customary authorization letters that authorize the distribution of the confidential information memorandum to prospective lenders, including without limitation, which letters shall contain a customary “10b-5” representation by the USA PATRIOT ACT. Notwithstanding anything Company with respect to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of Company and its Subsidiaries and contain a representation that the public-side version does not include material non-public information about the Company and its Subsidiaries or their securities (provided that the Company shall be required provided with a reasonable opportunity to take or review and comment on the disclosure with respect to the Company and its Subsidiaries contained in such confidential information memorandum); and
(viii) using reasonable best efforts in connection with taking all corporate and other actions, subject to the occurrence of the Closing, reasonably requested by Parent in writing and necessary and customary to permit the taking consummation of any action pursuant to this the Financing.
(b) Notwithstanding the provisions of Section 7.9(a6.17(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreementprovision of this Agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, nothing in each case that would be effective prior to this Agreement will require the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Company or any of its Subsidiaries to: (A) waive or amend any terms of this Agreement or agree to pay any fees, reimburse any expenses or incur any other liability in connection with Table of Contents the Financing prior to the Closing Date unless it has received prior reimbursement or is otherwise indemnified by Parent in accordance with Section 6.17(e) hereof; (B) require the Company or any of its Subsidiaries, or any director or manager on any of their respective boards of directors or managers (or equivalent bodies), to approve or authorize the Financing unless Parent shall have determined that such directors and managers (or members of equivalent bodies) are to remain as directors and managers (or members of equivalent bodies) of the Company or such Subsidiary on and after the Closing Date and such resolutions are contingent upon the occurrence of, or only effective as of, the Closing or enter into any definitive agreement, certificate, instrument or other document the effectiveness of which is not conditioned on the Closing Date (other than, for the avoidance of doubt, the customary authorization letters described in Section 6.17(a)(vii)) that is effective prior to the Effective Time, (C) give any indemnities that are effective prior to the Closing Date, (D) take any action that, in the good faith determination of the Company, would unreasonably interfere with the conduct of its business in any material respect or create an unreasonable risk of damage or destruction to any material property or assets of the Company or any of its Subsidiaries; (E) provide any information the disclosure of which is prohibited or restricted under applicable Law, is legally privileged or would result in the contravention of, or that would reasonably determines be expected to result in a violation or breach of, or default under, any obligation of confidentiality (not created in contemplation hereof) binding on the Company or any of its Subsidiaries; (F) take any action that will conflict with or violate its organizational documents or any applicable Laws or would jeopardize result in a violation or breach of, or default under, any attorney-client privilege of Allergan material agreement to which the Company or any of its Subsidiaries is a party; (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (ivG) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries become inaccurate (unless such breach or inaccuracy is waived by AbbVieParent), ; (iiiH) cause any director, officer or officer, employee or shareholder stockholder of Allergan the Company or any of its Subsidiaries to incur any personal liability or liability; (ivI) result in a material violation or breach of, or a default under, any material Contract to which Allergan require the Company or any of its Subsidiaries or any of their Representatives to deliver any legal opinions or reliance letters (other than customary authorization letters required by Section 6.17(a)(vii) and customary “comfort” letters); (J) file or furnish any reports or information with the SEC in connection with the Financing, except, after consultation between Parent and the Company and their Representatives, the furnishing on Current Reports on Form 8-K by the Company of information included in documents with respect to such Financing to the extent required in order to satisfy the Company’s Regulation FD disclosure obligations; (K) prepare or provide directly or through any of their respective Representatives any (1) description of all or any portion of the Financing, including any “description of notes,” “plan of distribution” and information customarily provided by investment banks or their counsel or advisors in the preparation of a prospectus for registered offerings or an offering memorandum for private placements of non-convertible bonds pursuant to Rule 144A, as the case may be, (2) risk factors relating to, or any description of, all or any component of the financing contemplated thereby, (3) any compensation discussion and analysis or other information required by Item 10, Item 402 and Item 601 of Regulation S-K of the Securities Act; or any information regarding executive compensation or related persons related to SEC Release Nos. 33-8732A, 34-54302A and IC-27444A, (4) consolidating financial statements, separate Subsidiary financial statements, related party disclosures, or any segment information, in each case which are prepared on a basis not consistent with the Company’s reporting practices for the periods presented in the Financing, (5) financial statements or other financial data (including selected financial data) for any period earlier than the year ended December 31, 2018, or (6) information (including financial information) that is not available to the Company or its Affiliates without undue burden or expense; (L) prepare, or use reasonable best efforts to cause its Representatives to prepare, pro forma financial information or projections; or (M) change any fiscal period or accelerate the Company’s preparation of its SEC reports or financial statements to align with Parent’s fiscal periods. No person who is a party, director of the Organizational Documents Company or any of Allergan its Subsidiaries at any time prior to the Closing (a “Pre-Closing Director”) shall be required to take any action to approve the Financing and neither the Company nor any of its Subsidiaries shall be obligated to take any action that requires action or approval by any Pre-Closing Director of the Financing.
(c) The Company consents to the use of all of its and its Subsidiaries’ logos in connection with any Financing; provided that such logos (i) are used solely in a manner that is not intended to or likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any applicable Law. AbbVie shall cause all of its Subsidiaries, (ii) are used solely in connection with a description of the business of the Company and its Subsidiaries or the Merger and (iii) do not appear on the cover of any rating agency presentations, bank Table of Contents information memoranda and securities offering prospectuses or memoranda, road show presentations and similar documents used in connection with the Financing.
(d) All non-public or other confidential information provided by or on behalf of Allergan the Company or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to Agreement will be kept confidential in accordance with the Confidentiality Agreement; provided, except that Allergan acknowledges and agrees that the confidentiality undertakings that Parent will be obtained permitted to disclose such information (i) as is legally required to be disclosed in any offering documents related to any debt financing or (ii) to any Financing Sources or prospective financing sources, ratings agencies and other financial institutions and investors that are or may become parties to such financing and to any underwriters, initial purchasers or placement agents in connection with syndication such financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as if parties thereto and (ii) are subject to other confidentiality undertakings customary for financings of the Financing same type as the Financing.
(e) Parent agrees to (i) indemnify, defend and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any loss, damages, claim, cost, liability, obligation or expense suffered or incurred in connection with providing the cooperation and support contemplated by Section 6.17(a) and any information provided in connection therewith except (A) information furnished in writing by or on behalf of the Company and its Subsidiaries for use therein and (B) to the extent arising from the willful misconduct, gross negligence, fraud or intentional misrepresentation of the Company or its Subsidiaries and (ii) promptly, upon request of the Company, reimburse the Company and its Subsidiaries for all reasonable out-of-pocket costs incurred by the Company or its Subsidiaries in connection with providing the cooperation and support contemplated by Section 6.17(a). The provisions of this Section 6.16(c) shall survive termination of this Agreement.
(f) Anything in this Agreement to the contrary notwithstanding, the Company will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period deemed to be in compliance with the requirements provisions of Section 6.17(a) unless and until (A) Parent provides written notice (the Panel and “Non-Cooperation Notice”) to the Takeover Rules.Company of any alleged failure to comply, or action or failure to act which could be believed to be a breach of Section 6.17(a), (B) Parent includes
Appears in 1 contract
Financing Cooperation. (a) Until Prior to the earlier of the Completion Closing, Seller Parent, Seller and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsCompany shall, and each of Seller Parent, Seller and the Company shall cause each the Subsidiaries of its Subsidiaries Seller Parent, the Company and VES to use its reasonable best efforts, and shall use its reasonable best efforts to cause its Representatives (including members of senior management of the Business and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors) to, to use their provide such reasonable best efforts, to provide to AbbVie cooperation as is customary and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary Buyer in connection with the arranging, arrangement and obtaining and syndication of the Debt Financing, including using reasonable best efforts with respect to:
including: (i) upon reasonable advance notice, participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of lender meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times (ii) furnishing Buyer and at locations reasonably acceptable its Debt Financing Sources with the financial and other information regarding the Business, the Company, its Subsidiaries and VES that is required to Allergan and upon reasonable noticebe delivered pursuant to the Debt Commitment Letter, including the Required Information, (Biii) assisting with AbbVie’s Buyer and its financing sources in the preparation of (A) customary materials for registration statements, offering documents, private placement memoranda, bank confidential information memoranda, prospectuses, rating agency memoranda and lender and investor presentations (including assistance with the preparation of “public” versions thereof) and similar documents required customary in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing arrangement of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization lettersDebt Financing, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and information relating to the Business, the Company, its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of VES, and providing to the applicable type, including all Historical Financial Statements financing sources customary authorization and other customary information representation letters with respect to Allergan such memoranda, presentations and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Debt Financing;
, limited in all respects to information relating to the Business, the Company, its Subsidiaries and VES, and (viB) obtaining Allergan’s independent auditors’ customary comfort letters materials for rating agency presentations, and assistance with the accounting due diligence activities otherwise assisting Buyer in procuring a public corporate credit rating and a public corporate family rating in respect of the borrower under the Debt Financing Sources;
and public ratings for any of the Debt Financing offered in connection therewith, (viiiv) causing the Financing facilitating customary due diligence, (v) using commercially reasonable efforts to benefit from the existing lender relationships of Allergan obtain such consents, surveys and its Subsidiaries;
(viii) providing documents title insurance as reasonably requested by AbbVie Buyer or the its Debt Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing Debt Financing, (provided that such logos are used solely vi) cooperating with Buyer’s legal counsel in a manner that is not intended delivering legal opinions in connection with the Debt Financing, (vii) assisting in the preparation of the definitive agreements with respect to the Debt Financing, including credit agreements, intercreditor agreements, pledge and is not security documents and certificates and other documents relating thereto or required to be delivered thereunder, as reasonably likely requested by Buyer, and otherwise facilitating the granting or perfection of security interests to harm or disparage Allergan or secure the Debt Financing, including delivery of certificates representing equity interests constituting collateral, intellectual property filings with respect to intellectual property constituting collateral and mortgages with respect to Owned Real Property constituting collateral and obtaining releases of existing Liens and guarantees, in each case, subject to Section 5.12(b), and (viii) furnishing Buyer and its Subsidiaries or the reputation or goodwill of Allergan or financing sources promptly, and in any of its Subsidiaries); and
(x) providing event at least three (3) Business Days in advance of prior to the Completion Date such Closing Date, with all documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection any Governmental Authority with the respect to any Debt Financing that relates to under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationthe Uniting and Strengthening of America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act and the requirements of 31 C.F.R. §1010.230, in each case, to the USA PATRIOT ACTextent that such documentation and information has been reasonably requested at least ten days prior to the Closing Date. Seller Parent hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage Seller Parent or any of its Affiliates or the reputation or goodwill of Seller Parent or any of its Affiliates. All non-public or otherwise confidential information regarding Seller Parent or its Affiliates obtained by Buyer or its Representatives pursuant to this Section 5.12 shall be kept confidential in accordance with the Confidentiality Agreement (as modified by Section 5.4(b)), including any joinder or other agreement entered into in connection therewith, and Section 5.4.
(b) Notwithstanding anything herein to the contrary in this Section 7.9(a) or Section 7.9(b) belowcontrary, (Ai) none of Allergan nor the Company, its Affiliates or any persons who are directors or managers of Seller Group or its Subsidiaries Affiliates shall be required to take pass resolutions or permit consents to approve or authorize the taking execution of the Debt Financing, other than resolutions or consents of directors or managers or members of the Company, its Subsidiaries and VES in their capacity as directors, managers or members of the Company, its Subsidiaries or VES immediately following the Closing and that do not become effective prior to the Closing, (ii) none of the Company, its Affiliates or any of their respective Representatives shall be required, other than customary authorization and representation letters as described in Section 5.12(a)(iii), to execute, deliver or enter into, or perform any definitive agreement, document or instrument with respect to the Debt Financing the effectiveness of which is not contingent on the occurrence of the Closing (for the avoidance of doubt, it being acknowledged by Buyer that the Seller Group is providing any authorization and representation letters to the financing sources in connection with the Debt Financing as an accommodation to assist Buyer, that Buyer is not relying, and will not rely, on any such authorization and representations letters executed or delivered by any member of the Seller Group, that the execution or delivery of any action such authorization and representation letters by a member of the Seller Group shall not modify or expand the rights of or remedies available to Buyer hereunder, and that the execution or delivery of any such authorization and representation letters shall not modify or expand the representations and warranties of Seller set forth herein), (iii) other than in respect of customary authorization and representation letters as described in Section 5.12(a)(iii), no obligation of the Company, its Affiliates or any of their respective Representatives undertaken pursuant to this Section 7.9(athe foregoing shall be effective until Closing, and (iv) none of the Company, its Affiliates or Section 7.9(b) below any of their respective Representatives shall be required to (iA) pay any commitment or other similar fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan Debt Financing or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan incur any other cost or expense in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Debt Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projectionsClosing that is not reimbursed by Buyer, (B) none of take any actions to the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that extent such actions would (i) interfere unreasonably with the ongoing business or operations of Allergan the Company and its Affiliates, (C) take any actions that would conflict with or violate the Company’s or its SubsidiariesAffiliates’ organizational documents or any Laws, or that would reasonably be expected to result in a violation or breach of, or default under, any Contract to which any of them are a party or by which any of their assets are bound or (iiD) take any actions that would cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) that would cause any directorclosing condition set forth in Article VI to fail to be satisfied or that would otherwise cause a breach of this Agreement. Buyer shall, officer promptly upon written request by Seller or employee the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses incurred by the Company, its Affiliates or shareholder their respective Representatives in connection with the cooperation provided for in Section 5.12(a) and shall indemnify and hold harmless the Company, its Affiliates and their respective Representatives for and against any and all losses suffered or incurred by them in connection with the arrangement of Allergan or the Debt Financing and any of its Subsidiaries to incur any personal liability or information utilized in connection therewith (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential than written information provided by the Company, its Affiliates or on behalf their respective Representatives) and such obligations shall survive the termination of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Verso Corp)
Financing Cooperation. (a) Until Following the earlier of the Completion and the valid termination date of this Agreement pursuant and prior to and in accordance with Article 9the Closing Date, Allergan Seller shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries Purchaser with such assistance cooperation as may be reasonably requested by AbbVie Purchaser to assist it in writing that causing the conditions in the Debt Commitment Letters to be satisfied or as is customary otherwise reasonably requested by Purchaser in connection with the arranging, obtaining and syndication arrangement of the Debt Financing, including using reasonable best efforts with respect toin:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of causing management of Allergan with appropriate seniority Seller to participate in a reasonable number of meetings, conference calls, presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions), drafting sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and (upon reasonable notice, request) with rating agencies and to otherwise cooperate with the marketing efforts for any of the Debt Financing and to assist Purchaser in obtaining ratings as contemplated by the Debt Commitment Letters;
(Bii) assisting providing reasonable assistance to Purchaser and the Financing Sources with AbbVie’s the preparation of customary materials for registration statements, offering documents, private placement memoranda, any bank information memoranda, prospectuseslender presentations, investor presentations, offering documents, rating agency presentations and similar documents required in connection with the Debt Financing;
(iii) executing and delivering as of Closing (but not prior to Closing) any guarantee, pledge and security documents, supplemental indentures, currency or interest hedging arrangements, other definitive financing documents, or other certificates or documents as may be reasonably requested by Purchaser or the Financing Sources 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;
(collectively, “Marketing Material”iv) as promptly as practicable (A) furnishing Purchaser with the Required Financing Information and due diligence sessions related thereto, (C) delivering such other pertinent and consenting customary information regarding the Business as may be reasonably requested by Purchaser to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings extent that such information is required in connection with the Marketing Material Debt Commitment Letters and (in each caseB) informing Purchaser if the chief executive officer, chief financial officer, treasurer or controller of Seller or any member of the board of directors of Seller shall have knowledge of any facts as applicable, subject a result of which a restatement of any financial statements to customary confidentiality provisions and disclaimers)comply with GAAP is probable or under consideration;
(iiv) timely furnishing AbbVie assisting Purchaser with the preparation of pro forma financial information and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual pro forma financial statements to the extent so required (which audit reports shall not reasonably requested by Purchaser or the Financing Sources to be subject to included in any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings offering documents specified in Section 4 of Exhibit D of the applicable type;
(iiiDebt Commitment Letter or to satisfy the condition in Section 3(a) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan of Exhibit D of the Debt Commitment Letter, it being agreed that Seller and its Subsidiaries as may will not be reasonably requested in connection required to provide any information or assistance relating to (I) the proposed aggregate amount of debt and equity financing, together with their delivery of any customary negative assurance opinions assumed interest rates, dividends (if any) and customary comfort letters fees and expenses relating to the Financing;
incurrence of such debt or equity financing, (ivII) causing Allergan’s independent auditors any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in be incorporated into any Marketing Material and registration statements and related government filings filed or information used in connection with the FinancingDebt Financing or (III) any financial information related to Purchaser or any of its Subsidiaries or any adjustments that are not directly related to the acquisition of the Business by Purchaser;
(vi) obtaining Allergan’s requesting and facilitating its independent auditors’ auditors to (A) provide, consistent with customary practice, (I) customary auditors consents (including consents of accountants for use of their reports in any materials relating to the Debt Financing) and customary comfort letters (including “negative assurance” comfort and change period comfort) with respect to financial information relating to the Business as reasonably requested by Purchaser or as necessary or customary for financings similar to the Debt Financing (including any offering or private placement of debt securities pursuant to Rule 144A under the Securities Act) and (II) reasonable assistance to Purchaser in connection with the Purchaser’s preparation of pro forma financial statements and information and (B) attend accounting due diligence activities of the Financing Sourcessessions and drafting sessions;
(vii) causing to the extent required under the Debt Commitment Letters, provide customary authorization letters to the Financing Sources authorizing the distribution of information to benefit from prospective lenders or investors and containing a customary representation to the existing lender relationships Financing Sources as contemplated by the Debt Commitment Letters, including that the public side versions of Allergan such documents do not include material non-public information about the Business or its securities and its Subsidiaries;the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing; and
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing furnishing at least three (3) Business Days in advance of prior to the Completion Closing Date such Purchaser and the Financing Sources with all customary documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates U.S. regulatory authorities pursuant to applicable “know your customer” and anti-money laundering rules and regulations, including without limitationthe Patriot Act, to the USA PATRIOT ACTextent requested at least ten (10) Business Days prior to the Closing Date. Notwithstanding anything to the contrary in this Section 7.9(a5.22(a), nothing will require Seller to provide (or be deemed to require Seller to prepare) any (1) pro forma financial statements; (2) information regarding any post-Closing or Section 7.9(bpro forma cost savings, synergies, capitalization, ownership or other post-Closing pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing; (3) belowdescription of all or any portion of the Financing, including any “description of notes”; (A4) none risk factors relating to all or any component of Allergan nor any of its Subsidiaries shall the Financing; (5) other “segment” financial information, financial statements or other financial information and data that would be required to take by Rules 3-05, 3-09, 3-10 or permit 3-16 of Regulation S-X under the taking Securities Act, Item 10, Item 301, Item 402, Item 404 and Item 601 of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than thirdRegulation S-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents K under the Securities Act or any other agreement, certificate, document or instrument, or agree to any change to or modification information customarily excluded from an offering memorandum for private placements of any existing agreement, certificate, document or instrument, in each case that would be effective prior to non-convertible high-yield debt securities under Rule 144A promulgated under the Completion Date or would be effective if Securities Act (the Completion does not occur foregoing clauses (except 1) through (x5) to the extent required by Section 7.9(bis referred herein as “Excluded Information”), applicable Allergan Supplemental Indentures, .
(yb) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and Seller shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information provide to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its SubsidiariesPurchaser, as applicablepromptly as reasonably practicable but in any event not later than July 31, to deliver a customary opinion 2019, the audited statements of counsel to income, equity and cash flows for the trustee under fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light audited balance sheets of the facts Business for the fiscal years ended December 31, 2017 and circumstances at the time delivered))December 31, 2018.
(vc) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty Nothing in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iiiSection 5.22(c) cause any director, officer or employee or shareholder of Allergan will require Seller or any of its Subsidiaries to incur (i) waive or amend any personal liability terms of this Agreement or agree to pay any fees or reimburse any expenses prior to the Closing Date; (ii) enter into any definitive agreement the effectiveness of which is not conditioned upon the Closing (other than customary representation letters and authorization letters referred to above); (iii) give any indemnities that are effective prior to the Closing Date that would not be reimbursed or indemnified by Purchaser; or (iv) result take any action that would unreasonably interfere with the conduct of the Business, breach any confidentiality obligations or create a risk of damage or destruction to any property or assets of Seller or any of its Subsidiaries. In addition, no action, liability or obligation of Seller, any of its Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to the Debt Financing will be effective until the Effective Time, and neither Seller nor any of its Subsidiaries will be required to take any action pursuant to any certificate, agreement, arrangement, document or instrument that is not contingent on the occurrence of the Closing or that must be effective prior to the Closing Date. Nothing in a material violation this Section 5.22(c) will require Seller, its Subsidiaries or breach oftheir respective directors, officers or employees to execute, deliver or enter into, or a default underperform any agreement, document or instrument, including any material Contract definitive financing document, with respect to any debt financing or adopt resolutions approving the agreements, documents and/or instruments pursuant to which Allergan any debt financing is obtained or pledge any collateral with respect to any debt financing prior to the Closing. Nothing in this Section 5.22(c) shall require (A) any officer or Representative of Seller or any of its Subsidiaries is a partyto deliver any certificate or take any other action under this Section 5.22(c) that could reasonably be expected to result in personal liability to such officer or Representative; or (B) Seller to approve any financing or Contracts related thereto prior to the Closing Date (it being understood and agreed that all certificates, opinions or resolutions shall be delivered by any officer or board members of the Acquired Group Companies immediately after the Closing Date). Seller and its Subsidiaries and Representatives shall not be required to deliver any legal opinions or solvency certificate. Notwithstanding anything to the contrary in this Agreement, the Organizational Documents condition set forth in Section 8.3(b), as it applies to Seller’s obligations relating to the Debt Financing, shall be deemed satisfied, and Seller shall not be deemed to have breached or failed to perform or observe any covenants, obligations or other agreements contained in this Agreement relating to the Debt Financing, in each case, unless the Debt Financing has not been obtained primarily as a result of Allergan the failure of any condition precedent to the funding of the full proceeds of the Financing that is caused by Seller’s willful breach of its obligations under this Section 5.22(c), which breach has not been cured on or prior to the Business Day prior to the third Business Day after Purchaser has provided written notice specifically identifying such breach to Seller.
(d) Seller hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing so long as such logos (i) are used solely in a manner that is not intended to, or reasonably likely to, harm or disparage Seller or any of its Subsidiaries.
(e) Seller will use its reasonable best efforts, and will cause each of its Subsidiaries to use its respective reasonable best efforts, to update any Required Financing Information provided to Purchaser and the Financing Sources as may be necessary so that such Required Financing Information (i) is Compliant, (ii) meets the applicable requirements set forth in the definition of “Required Financing Information” and (iii) would not, after giving effect to such update(s), cause the Marketing Period to cease pursuant to the definition of “Marketing Period.” For the avoidance of doubt, Purchaser may, to most effectively access the financing markets, require the cooperation of Seller and its Subsidiaries under this Section 5.22 at any time, and from time to time and on multiple occasions, between the date hereof and the Closing Date. Seller agrees to (i) file all reports on Form 10-K and Form 10-Q and, to the extent required to include financial information pursuant to Item 9.01 thereof, Form 8-K and (ii) use reasonable best efforts to file all other Forms 8-K, in each case, required to be filed with the SEC pursuant to the Exchange Act prior to the Closing Date in accordance with the time periods required by the Exchange Act. In addition, if, in connection with a marketing effort contemplated by the Debt Commitment Letters, Purchaser reasonably requests Seller to file a Current Report on Form 8-K pursuant to the Exchange Act that contains material non-public information with respect to Business, which information Purchaser reasonably determines (and Seller does not unreasonably object) to include in a customary offering memorandum or any applicable Law. AbbVie other marketing materials for the Debt Financing, then Seller shall cause all file such Current Report on Form 8-K.
(f) All non-public or other confidential information provided by or on behalf of Allergan Seller, its Subsidiaries or any of its Subsidiaries or their Representatives pursuant to this Section 7.9 to Agreement shall be kept confidential in accordance with the Confidentiality Agreement; provided, except that Allergan acknowledges and agrees that the confidentiality undertakings that Purchaser will be obtained permitted to disclose such information to any financing sources or prospective financing sources and other financial institutions and investors that are or may become parties to the Debt Financing and to any underwriters, initial purchasers or placement agents in connection with syndication the Debt Financing (and, in each case, to their respective counsel and auditors).
(g) Promptly upon request by Seller, Purchaser shall reimburse Seller for any out-of-pocket costs and expenses (including attorneys’ fees) incurred by Seller, its Subsidiaries or any of its Representatives in connection with the cooperation or obligations of Seller, its Subsidiaries and their Representatives contemplated by Section 5.22.
(h) Purchaser shall indemnify, defend and hold harmless Seller, its Subsidiaries and their respective Representatives from and against any and all Losses suffered or incurred by them in connection with their cooperation in arranging the Debt Financing and the performance of their respective obligations under this Section 5.22 and the provision of any information utilized in connection therewith (other than information provided by Seller or its Subsidiaries), in each case, other than to the extent any of the Financing foregoing was suffered or incurred as a result of the bad faith, gross negligence or willful misconduct of, or material breach of this Agreement by, Seller and its Subsidiaries or, in each case, their respective Representatives.
(i) In no event will Sponsor, Purchaser or any of their respective Affiliates (which for this purpose will be deemed to include each direct investor in Purchaser and the financing sources or potential financing sources of Purchaser and such investors) enter into any Contract prohibiting or seeking to prohibit any bank, investment bank or other potential provider of debt or equity financing from providing or seeking to provide debt or equity financing or financial advisory services to any Person, in each case in connection with a form customary for use transaction relating to Seller or any of its Subsidiaries or in the syndication of acquisition-related debt during a takeover offer period in compliance connection with the requirements of the Panel and the Takeover RulesSale.
Appears in 1 contract
Financing Cooperation. (a) Until Prior to the earlier Effective Time with respect to the financing of the Completion and Merger, the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors directors, employees, accountants, consultants, legal counsel, agents and other Representativesrepresentatives to, including legal and accounting advisorsin each case at Parent's sole expense, to use their reasonable best efforts, to provide to AbbVie Parent and its Subsidiaries such assistance as may be reasonably Merger Sub all cooperation requested by AbbVie in writing Parent that is customary reasonably necessary, proper or advisable in connection with the arranging, obtaining and syndication of Financing or any permitted amended or modified or replacement financing (collectively with the Financing, the "Available Financing") and the transactions contemplated by this Agreement (provided that such requested cooperation does not unreasonably interfere with the business or operations of the Company and its Subsidiaries), including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions), drafting sessions and sessions with meetings with, and presentations to, prospective lenders, investors and rating agencies, lenders (all of which shall take place at times and at locations reasonably acceptable to Allergan and upon reasonable notice, the Company's facilities); (Bii) assisting with AbbVie’s the preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations memoranda and similar documents required in connection with the Financing (collectivelyDebt Financing, “Marketing Material”) including execution and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing delivery of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings letters in connection with the Marketing Material therewith; (in each caseiii) (A) as promptly as practical after Parent's request, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie Parent and its Available Financing Sources sources with historical financial and other customary information (collectively, regarding the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan Company and its Subsidiaries as may be reasonably requested by Parent, and (B) in connection with their delivery of any customary negative assurance opinions event, by the deadlines set forth therein, all financial information regarding the Company and customary comfort its Subsidiaries required to be timely delivered to satisfy a condition precedent to the Available Financing (all such information in this clause (iii), the "Required Information"); (iv) using reasonable best efforts to obtain legal opinions, appraisals, officers certificates, lien searches, payoff letters and lien termination statements, surveys, engineering reports, title insurance and other documentation and items relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Available Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such including documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to bank regulatory authorities under applicable “know your "know-your-customer” " and anti-money laundering rules and regulations, including without limitationthe Patriot Act) as reasonably requested by Parent or Merger Sub and, if requested by Parent or Merger Sub, to cooperate with and assist Parent or Merger Sub in obtaining such documentation and items; (v) executing and delivering, as of the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) belowEffective Time, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment pledge and security documents, other definitive financing documents, or other fee certificates, mortgages, documents and instruments relating to guarantees, or incur any liability documents as may be reasonably requested by Parent (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents including a certificate of the Chief Financial Officer of the Company or any other agreement, certificate, document or instrument, or agree Subsidiary with respect to solvency matters and consents of accountants for use of their reports in any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates materials relating to the execution thereof that would not conflict with applicable Law Available Financing) and would be accurate in light otherwise facilitating the pledging of collateral and providing of guarantees contemplated by the facts Debt Commitment Letters and circumstances at the time delivered and any other Available Financing (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, including cooperation in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(bpay-off of existing indebtedness and the release of related Liens), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, ; (vi) commence any Allergan Note Offers taking all actions reasonably necessary to (A) permit the prospective persons involved in the Available Financing to (1) evaluate the Company, including the Company's current assets, cash management and Consent Solicitations or accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements and (vii2) prepare any pro forma financial information or projections, conduct a collateral field exam and a net orderly liquidation appraisal of the Company's and its Subsidiaries' inventory (B) none establish bank and Table of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules.Contents
Appears in 1 contract
Sources: Merger Agreement (Animal Health International, Inc.)
Financing Cooperation. (a) Until During the earlier of period from the Completion and the valid termination date of this Agreement pursuant to the Effective Time, the Company and in accordance with Article 9, Allergan shall use its reasonable best effortsSubsidiaries shall, and shall cause each of its Subsidiaries to use its reasonable best efforts, and the Company shall use its reasonable best efforts to cause its and their its Subsidiaries' respective officersRepresentatives to, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be RG all cooperation that is reasonably requested by AbbVie in writing that is customary RG in connection with the arrangingdebt and equity financings (including without limitation, obtaining and syndication any portion of the contemplated Financing) the proceeds of which shall be used to consummate the Transactions, including using reasonable best efforts with respect towhich cooperation shall include, in any event:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, due diligence sessions (including accounting due diligence sessions), drafting sessions, due diligence sessions with prospective lenders and sessions with prospective lenders, investors and rating agencies;
(ii) making the Company's officers reasonably available to assist the Debt Financing Parties;
(iii) cooperating reasonably with the Debt Financing Parties' due diligence, at times to the extent customary and at locations reasonably acceptable to Allergan and upon reasonable notice, reasonable;
(Biv) assisting RG and the Debt Financing Parties with AbbVie’s the preparation of customary materials for registration statementsrating agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), offering documents, private placement memoranda, bank information memorandamemoranda (including the delivery of customary authorization and representation letters authorizing the distribution of information to prospective lenders or investors and containing a representation that the public side versions of such documents, prospectusesif any, rating agency presentations do not include material non-public information regarding the Company or its Subsidiaries or securities), and similar documents all other material required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering all documentation and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings other information reasonably required in connection with applicable "know your customer" and anti-money laundering rules and regulations, including the Marketing Material (in each casePATRIOT Act; provided, as applicable, subject that prior to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectivelythe Closing, the “Financing Information”) with respect to Allergan Company shall provide all such documentation and information about the Company and its Subsidiaries as is reasonably requested in writing by AbbVie or its Financing Sources RG to the extent required under applicable "know your customer" and customarily required in Marketing Material for Financings anti-money laundering rules and regulations including the USA PATRIOT Act;
(v) assisting with the preparation of, and executing and delivering, any pledge and security documents, any loan agreement, notes, other definitive financing documents (including a certificate of the applicable type, including all Historical Financial Statements and other customary information chief financial officer with respect to Allergan solvency of the Company and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements after giving effect to the extent so required (which audit reports shall not be subject to any “going concern” qualificationstransactions contemplated hereby), legal opinions, or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used by RG in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters facilitating the pledging of collateral and assistance any collateral audits and appraisals required in connection with the accounting due diligence activities of the Financing SourcesFinancing;
(vii) causing assisting RG in preparing customary financial information and disclosures regarding the Financing to benefit from the existing lender relationships of Allergan Company and its Subsidiaries, as may be reasonably requested by RG and identifying any portion of such information that constitutes material non-public information;
(viii) providing documents using reasonable best efforts to obtain such legal opinions, surveys and title insurance as reasonably requested by AbbVie RG or any of the Debt Financing Parties in connection with the Financing; Table of Contents
(ix) instructing its independent accountants to cooperate with and assist RG in preparing customary and appropriate information packages and offering materials as any of the Debt Financing Parties or other prospective lenders may reasonably request for use in connection with the Financing Sources and using reasonable best efforts to cause such accountants to consent to the use of their reports in any material relating to the repayment Financing;
(x) using reasonable best efforts to obtain customary payoff letters, lien releases, instruments of termination, waivers, consents, estoppels, approvals or refinancing discharge and legal opinions, in each case reasonably requested by RG in connection with the Financing and collateral arrangements;
(xi) taking such corporate or entity actions, subject to the occurrence of any indebtedness for borrowed money the Closing, reasonably requested by RG to permit the consummation of Allergan the Financing and to permit the proceeds thereof to be made available at the Closing; and
(xii) ensuring that there is no competing issue of debt securities or commercial bank or other credit facilities (other than the Financing) by or on behalf of the Company or any of its Subsidiaries (it being understood and agreed that any deferred purchase price obligations and ordinary course capital lease, purchase money and equipment financings are not restricted by the foregoing); provided, however, that (A) no such requested cooperation may unreasonably interfere with the ongoing operations of the Company and its Subsidiaries, (B) no obligation of the Company or any of its Subsidiaries under any certificate, agreement, notice or other document or instrument shall be effective until the Effective Time, and none of the Company or any of its Subsidiaries shall be required to be repaid pay or refinanced on incur any liability for any commitment or other similar fee, pay or incur any liability for any expense (other than as provided in this Agreement) or incur any other obligation or liability in connection with the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (Financing prior to the extent required) evidence Effective Time unless promptly reimbursed by RG (provided that notice of such fee, liability or expense is provided to RG) and (C) neither the Company nor any such repayment has been timely delivered of its Subsidiaries, nor any of their respective directors or officers, shall be required to take any action to authorize or approve the holders of such indebtednessFinancing (or any Alternative Debt Financing), in each case in accordance except at or contemporaneously with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);Effective Time.
(ixb) procuring The Company shall use reasonable best efforts to, as promptly as practicable, update or correct any Required Information determined to contain any untrue statement of material fact or omit to state any material fact necessary to make the statements contained therein not materially misleading. The Company hereby consents to the reasonable use of all of Allergan’s the Company's and its Subsidiaries' logos in connection with the Financing (Financing, provided that such logos are used solely in a manner that is not intended to and is not or reasonably likely to harm or disparage Allergan or the Company and its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation Company and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie of their logos.
(c) The Company shall cause all non-public or other confidential information provided by or on behalf of Allergan or prepare and furnish to RG and the Debt Financing Parties, as promptly as reasonably practicable (and, in any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with event, no later than the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use time periods specified in the syndication definition of acquisition-related debt during a takeover offer period in compliance with "Required Information"), the requirements of the Panel and the Takeover RulesRequired Information.
Appears in 1 contract
Financing Cooperation. (a) Until Prior to Closing (or the earlier of the Completion and the valid termination of this Agreement pursuant to and Section 8.1), subject to the limitations set forth in accordance with Article 9, Allergan shall use its reasonable best effortsthis Section 4.25, and shall cause each of its Subsidiaries unless otherwise agreed by Purchaser, Sellers will, at Purchaser’s cost and expense (as provided in clause (d) below), use commercially reasonable efforts to (and will use its commercially reasonable best efforts, and shall use its reasonable best efforts to cause its the Acquired Companies and their respective officers, employees Affiliates and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance Representatives to) cooperate with Purchaser as may be reasonably requested by AbbVie Purchaser in writing that is customary connection with Purchaser’s or its Affiliates’ arrangement, syndication and obtaining financing in connection with the arranging, obtaining and syndication acquisition of the Acquired Companies (the “Financing, including ”). Such cooperation will include using commercially reasonable best efforts with respect to:
(i) participating in and assisting cooperate with the due diligence, syndication or other marketing efforts of Purchaser in connection with the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan making appropriate senior officers reasonably available, with appropriate seniority advance notice, for participation in a reasonable number of lender or investor meetings, presentationsdue diligence sessions, meetings with ratings agencies and road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon providing reasonable notice, (B) assisting with AbbVie’s assistance in the preparation of customary materials for registration statementsrating agency presentations, offering documentsconfidential information memoranda, private placement memoranda, bank information offering memoranda, prospectuses, rating agency registration statements, filings with the SEC and Canadian securities regulators, lender and investor presentations and similar documents required in connection with the Financing (collectivelyas may be reasonably requested by Purchaser, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject with respect to customary confidentiality provisions and disclaimers)information relating to the Acquired Companies in connection with such marketing efforts;
(ii) timely furnishing AbbVie prepare and its Financing Sources with historical financial furnish Purchaser and the lenders, underwriters, agents, banks or other customary information financing sources (collectively, the “Financing InformationSources”) ), on a confidential basis, as promptly as reasonably practicable all information with respect to Allergan and its Subsidiaries the Acquired Companies as is reasonably requested by AbbVie or its Financing Sources Purchaser and is customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) required for the marketing, arrangement and syndication of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), financings or (B) reasonably necessary used in the preparation of customary offering or information documents or rating agency, lender presentations or road shows relating to permit AbbVie any financing, provided that such information shall be limited to prepare pro forma financial statements customary for Financings of information and data derived from the applicable typeAcquired Companies’ historical books and records;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of furnish all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the a Governmental Entity or any Financing that relates to Source under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACTACT (Title III of Pub. Notwithstanding anything L. 107-56 (signed into law October 26, 2001)) and anti-bribery and anti-corruption rules and regulations to the contrary extent reasonably requested by Purchaser;
(iv) providing reasonable assistance to Purchaser to produce financial statements (including pro forma and audited financial statements of the Acquired Companies) required to be delivered pursuant to any securities laws or any financing arrangements and assisting Purchaser in this Section 7.9(a) or Section 7.9(b) belowthe preparation of such financial statements; provided, (A) none of Allergan that neither the Sellers nor any of its Subsidiaries their Representatives shall be required to take provide any such assistance with respect to financial information or permit statements relating to (A) the taking determination of the proposed aggregate amount of the Financing, the interest rates thereunder or the fees and expenses relating thereto; (B) the determination of any action pursuant 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 Financing; or (C) any adjustments that are not directly related to the acquisition of the Acquired Companies; provided further that (x) such assistance shall be limited solely with respect to information and data derived from the Seller’s historical books and records and (y) neither Sellers nor their Representatives shall be required to certify or attest to any such pro forma financial statements or other forecasted information; and
(v) assist with the Financing Sources’ requests for due diligence to the extent customary and reasonable. provided, further, that (A) nothing in this Section 7.9(a) 4.25 shall require Sellers to cause the delivery of legal opinions or Section 7.9(b) below reliance letters or any certificate as to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents solvency or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to certificate necessary for the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered Financing; and (zB) the authorization letter Sellers will use reasonable best efforts to (and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, will use their respective reasonable best efforts to cause the Acquired Companies and their Affiliates and Representatives to), reasonably promptly update any information in respect of Sellers and the Acquired Companies to be included in any document filed with the SEC or Canadian securities regulators so that such information does not contain, as of the time provided, any untrue statement of material fact or omit to be disclosed state any material fact necessary in a manner that would order to make the statements contained therein not result in the loss of any such privilege), misleading.
(ivb) deliver or cause its Representatives Sellers agree to deliver any legal opinion or negative assurance letter use reasonable best efforts to (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, will use their respective reasonable best efforts to cause counsel their Affiliates and Representatives to) provide, reasonable assistance to Allergan or its Subsidiaries, as applicable, Purchaser for a period of three months following Closing to deliver a customary opinion of counsel to produce the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith financial statements (provided that such opinions would not conflict with applicable Law including pro forma and would be accurate in light audited financial statements of the facts Acquired Companies) required to be delivered pursuant to any securities laws and circumstances at assisting Purchaser in the time delivered))preparation of financial statements; provided, (v) be an issuer or other obligor with respect to that neither the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan Sellers nor their Representatives shall be required to provide any such assistance with respect to financial information or statements relating to (A) the determination of the proposed aggregate amount of the Financing, the interest rates thereunder or the fees and expenses relating thereto; (B) 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 Financing; or (C) any adjustments that are not directly related to the acquisition of the Acquired Companies; provided further that (x) such assistance shall be limited solely with respect to information and data derived from each Seller's historical books and records and (y) neither Sellers nor their Representatives shall be required to certify or attest to any such pro forma financial statements or other forecasted information.
(c) Purchaser shall indemnify and hold harmless Sellers and their Affiliates and their respective directors, officers and employees from and against any and all Losses suffered or incurred by them in connection with the arrangement and completion of any Financing or related transactions by Purchaser in connection with financing the transactions contemplated hereby and any information utilized in connection therewith. This Section 4.25(c) shall survive the consummation of the Closing and any termination of this Agreement, and is intended to benefit, and may be enforced by, the officers and directors of the Sellers and their Affiliates and their respective heirs, executors, estates and personal representatives who are each third party beneficiaries of this Section 4.25(c).
(d) Nothing in this Section 4.25 shall require any such cooperation to the extent that it would require any Seller or the Acquired Companies to: (i) waive or amend any terms of this Agreement or agree to pay any fees or reimburse any expenses for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Purchaser; (ii) enter into any definitive agreement; (iii) give any indemnities in connection with the Financing; (iv) take any action that, in the good faith determination of the Sellers, would unreasonably interfere with the conduct of the business of the Sellers and their Affiliates or create an unreasonable risk of damage or destruction to any property or assets of the Sellers or any of their Affiliates; (v) adopt resolutions (whether by the board of directors of the Sellers or consents otherwise) approving the agreements, documents or and instruments pursuant to which the Financing is obtained obtained, other than those effective on the Closing Date; (vi) provide any assistance or any Allergan Note Offers and Consent Solicitations is consummated cooperation that (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (CA) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement made by any Seller to be breached breached, or (B) cause any conditions to Closing set forth in this Agreement to fail to be satisfied by Allergan the Outside Date or any otherwise result in a breach of its Subsidiaries this Agreement by Sellers that would provide Purchaser the right to terminate this Agreement (unless waived by AbbViePurchaser), ; or (iiiv) cause any director, officer cooperate to the extent it would require the disclosure of information which the Sellers or employee the Acquired Companies reasonably determine would reasonably be expected to jeopardize the attorney-client or shareholder other similar privilege of Allergan the Sellers or any of its Subsidiaries to incur the Acquired Companies or violate any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract Applicable Law to which Allergan the Sellers or any of its Subsidiaries the Acquired Companies is a party.
(e) Purchaser shall promptly upon request by Sellers, reimburse Sellers for all of their reasonable and documented out-of-pocket fees and expenses (including reasonable fees and expenses of counsel and accountants) incurred by Sellers and the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or Acquired Companies, any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained their representatives in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesany cooperation contemplated by this Section 4.25.
Appears in 1 contract
Sources: Stock Purchase Agreement (Algonquin Power & Utilities Corp.)
Financing Cooperation. (a) Until Prior to the earlier of Closing, and subject to the Completion terms and the valid termination conditions of this Agreement pursuant to and in accordance with Article 9Agreement, Allergan the Sellers shall use its commercially reasonable best efforts, and shall cause each of its Subsidiaries efforts to use its reasonable best effortsprovide, and shall use its commercially reasonable best efforts to cause its the Subject Companies and their respective officers, managers, directors (or equivalent) and employees and advisors and other Representatives, including legal and accounting advisors, representatives to use their commercially reasonable best effortsefforts to provide, customary cooperation (to provide to AbbVie and its Subsidiaries such assistance the extent consistent with this Agreement) as may be reasonably requested by AbbVie in writing that is customary Buyer, and at Buyer’s sole cost and expense, in connection with the arranging, obtaining and syndication arrangement of the FinancingDebt Financing contemplated by the Debt Commitment Letter, including using reasonable best efforts with respect to:
by (i) participating in furnishing Buyer and assisting its Debt Financing Sources with the due diligenceRequired Information under clause (x) thereof and using commercially reasonable efforts to furnish Buyer and its Debt Financing Sources with the Required Information under clause (y) thereof, syndication or other marketing of the Financing, including (ii) using commercially reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority participate in a reasonable number of meetings, presentations, road shows, drafting sessions, rating agency meetings and due diligence sessions and sessions with prospective lenders, investors Debt Financing Sources and rating agenciespotential lenders of the Debt Financing, at times and at locations reasonably acceptable to Allergan the Transferred Companies, including direct contact between management with appropriate seniority and upon reasonable noticeexpertise of the Subject Companies, on the one hand, and the actual and potential Debt Financing Sources and potential lenders of the Debt Financing, on the other hand, (Biii) assisting with AbbVie’s the preparation of customary materials for registration statementsrating agency presentations, offering documents, private placement memorandalender presentations (including “public” versions thereof), bank information memorandamemoranda (including “public” versions thereof), prospectusesand other similar documents, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting using commercially reasonable efforts to the inclusion or incorporation in identify any SEC filing related to the Financing portion of the historical audited consolidated financial statements information that constitutes material non-public information, and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) letters with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary bank information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters memoranda relating to the Debt Financing;
, (iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of prior to the Completion Date such Closing Date, furnishing all documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to required under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act of 2001, that has been requested by Buyer at least nine (9) Business Days prior to the Closing Date, (v) using commercially reasonable efforts to take corporate actions reasonably necessary to permit the consummation of the Debt Financing, (vi) using commercially reasonable efforts to permit the Debt Financing Sources to evaluate the Subject Companies’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements, (vii) using commercially reasonable efforts to cooperate with Buyer in its efforts to obtain surveys, appraisals, non-invasive environmental reports, title insurance and insurance certificates at the expense of and as reasonably requested by Buyer or the Debt Financing Sources, (viii) using commercially reasonable efforts to cooperate with Buyer to satisfy the conditions precedent set forth in the Debt Financing Documents to the extent the satisfaction of such condition requires the cooperation of, and is within the control of, the Transferred Companies and their Subsidiaries, (ix) executing and delivering the definitive agreements with respect to the Debt Financing (including guarantee and collateral documents and customary closing certificates with respect to the Debt Financing) (excluding, for the avoidance of doubt, any solvency certificates) as may be required by the Debt Financing and assisting with the preparation of any related schedules thereto (including, without limitation, providing information in the USA PATRIOT ACT. Notwithstanding anything possession of, or reasonably ascertainable by, the Subject Companies in connection therewith) and (x) taking reasonable steps to facilitate the pledging of, and granting of Liens on, collateral for the Debt Financing, including by assisting with obtaining releases of existing Liens of the Transferred Companies and their Subsidiaries (to the contrary extent not contemplated under this Agreement to survive the consummation of the Closing). The obligations of the Sellers under this Section 4.12 shall not, (i) unreasonably disrupt or interfere with the business or operations of the Sellers or the Subject Companies; (ii) nothing in this Section 7.9(a) 4.12 shall require cooperation to the extent that it would cause any condition to the Closing set forth in Section 6.1 or Section 7.9(b) below, (A) none 6.2 to not be satisfied or otherwise cause any breach of Allergan nor this Agreement or conflict with or violate any Organizational Document or material Contract of the Sellers or any Transferred Company or any of its Subsidiaries shall be required to take or permit their respective Affiliates, in each case, not entered into in contemplation of avoiding the taking requirements of any action pursuant to this Section 7.9(a4.12; (iii) require the Sellers, any Transferred Company or Section 7.9(b) below any of their respective Affiliates to (i) pay any commitment or other similar fee or incur or assume, prior to the Closing Date, any liability other liability, or provide or agree to provide any indemnity, in each case, that is not contingent upon the Closing (except, for the avoidance of doubt, with respect to customary authorization letters set forth in clause (iii) of the immediately preceding sentence), and in each case, in connection with the financings contemplated by the Debt Financing Documents or the Debt Financing (other than third-party costs and expenses that are to be promptly the extent reimbursed or indemnified by AbbVie upon request by Allergan the Buyer pursuant to this Section 7.9(c4.12); (iv) require the directors or managers (or equivalent) of the Sellers or any Transferred Company or any of their respective Affiliates, acting in such capacity, to adopt any resolutions or consents to approve or authorize the Debt Financing except to the extent such resolutions or consents are effective on or after the occurrence of the Closing; (v) require the Sellers or any Transferred Company or any of their respective Affiliates or their respective directors (or equivalent), (ii) execute managers, officers or employees to execute, deliver or enter into any definitive financing documents or any other agreement, certificatedocument, document certificate or instrument, instrument with respect to the Debt Financing except to the extent it is contingent upon the Closing or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would not be effective prior to the Completion Date or would be effective if the Completion does not occur Closing (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) other than customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate authorization letters set forth in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) of the immediately preceding sentence); (vi) require the Sellers, any Transferred Company or any of their respective Affiliates or their respective officers, managers, directors (or equivalent), employees or representatives to provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any is subject to attorney-client privilege or the disclosure of Allergan which would result in the breach of any confidentiality requirements applicable to the Sellers, the Transferred Companies or any of its Subsidiaries their respective Affiliates under contracts that were not entered into in contemplation of avoiding the requirements of this Section 4.12; (provided vii) require the officers, managers, directors (or equivalent), employees, accountants, legal counsel or other representatives of the Subject Companies or the Sellers to incur any personal liability; or (viii) require the Sellers, any Transferred Company or any of their respective Affiliates or their respective officers, managers, directors (or equivalent), employees or representatives to provide (and, in the case of clauses (1) and (2), Buyer shall be responsible for) (1) pro forma financial statements or any pro forma information, including any pro forma adjustments (other than, for the avoidance of doubt, available information reasonably requested and necessary for Buyer to prepare an unaudited pro forma balance sheet and related unaudited pro forma statement of operations in accordance with GAAP as of and for the twelve-month period ending on the last day of the most recently completed fiscal period for which financial statements are delivered pursuant to clause (x) of Required Information, which need not be prepared in compliance with Regulation S-X or include adjustments for purchase accounting), (2) projections or other forward-looking statements relating to any component of the Debt Financing or (3) financial statements other than pursuant to clause (x) of Required Information. Sellers hereby consent to the reasonable use of the Transferred Companies’ and their Subsidiaries’ logos in connection with the Debt Financing so long as such logos are used in a manner that Allergan is not intended to, nor reasonably likely to, harm or disparage Sellers or any of the Subject Companies or their respective reputation or goodwill. Notwithstanding anything in this Agreement (including the foregoing) to the contrary, it is understood and agreed that the condition set forth in Section 6.2(b), as applied to the Sellers’ obligations under this Section 4.12, shall be deemed to be satisfied unless the failure to perform or observe any covenants, obligations or other agreements contained in this Section 4.12 is the proximate cause of the Debt Financing having not been obtained.
(b) Buyer shall indemnify and hold harmless each of the Sellers, the Transferred Companies, their respective Affiliates and their respective partners, officers, managers, directors (or equivalent), employees, accountants, legal counsel and other representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the Debt Financing and the performance of their respective obligations under this Section 4.12 and any information utilized in connection therewith other than to the extent such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties (i) arise from the use of historical information relating to the Subject Companies furnished in writing by or on behalf of the Sellers or the Subject Companies specifically for use in connection with the Debt Financing or (ii) are a result of the bad faith, gross negligence or willful misconduct of the Sellers or the Subject Companies (as determined by a court of competent jurisdiction in a final non-appealable judgment). Buyer shall, promptly upon request of the Sellers, reimburse the Sellers, the Transferred Companies and shall cause its Subsidiaries to, use their respective Affiliates for all out-of-pocket costs and expenses incurred by the Sellers, the Transferred Companies or their respective Affiliates (including reasonable fees and expenses of attorneys, auditors, consultants and other agents) in connection with the cooperation contemplated by this Section 4.12. For the avoidance of doubt, the parties acknowledge and agree that the provisions contained in this Section 4.12 represent the sole obligation of the Sellers, the Transferred Companies and their respective officers, directors (or equivalent), employees, accountants, consultants, legal counsel, agents and other representatives with respect to cooperation in connection with the arrangement of the Debt Financing.
(c) The Sellers shall use reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv1) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except promptly following the execution and delivery of any applicable Allergan Supplemental Indenturesthis Agreement, cause the Subject Companies to engage PricewaterhouseCoopers LLP to audit (on terms in form and substance satisfactory to Buyer, acting reasonably) combined financial statements of the Personal Care Division of Domtar Corporation for the fiscal year ended December, 31, 2020, including the combined balance sheet as of December 31, 2020 and the related combined statements of earnings (loss) and comprehensive income (loss), cash flows and divisional equity for the fiscal year then ended (“2020 Audited Financials”) and (2) cause the Subject Companies to (x) ensure that such 2020 Audited Financials are prepared in accordance with GAAP and on a basis consistent with the Financial Statements, and (Cy) neither Allergan nor cause PricewaterhouseCoopers LLP to issue an audit opinion with respect thereto by no later than April 15, 2021. If the Closing occurs (x) on or after the date of issuance of the 2020 Audited Financials, the Sellers shall use reasonable best efforts to deliver to Buyer a copy of the completed 2020 Audited Financials, together with such audit opinion, promptly upon the completion thereof, or (y) prior to the date of issuance of the 2020 Audited Financials, the Sellers shall use reasonable best efforts to provide Buyer, the Subject Companies and their respective Representatives with such cooperation, information and access (including, subject to execution of customary access letters, work papers) regarding the Subject Companies and the Business as is reasonably requested, available and necessary for Buyer, the Subject Companies and PricewaterhouseCoopers LLP to complete the 2020 Audited Financials by no later than April 15, 2021 in the manner described in the preceding sentence. Such cooperation, information and access shall be provided in accordance with the applicable procedures set forth in Section 4.2(b) (applied on a mutatis mutandis basis) and the out-of-pocket costs of preparing the 2020 Audited Financials, including the fees of PricewaterhouseCoopers LLP incurred in connection therewith, and other cooperation by the Sellers, the Subject Companies and any of its Subsidiaries their respective Representatives, shall be required borne in their entirety by Buyer. In addition, if the Closing has not occurred by March 31, 2021, the Sellers shall use reasonable best efforts prior to take or permit and until the taking Closing to cause the Subject Companies to timely prepare (with a target completion date not later than May 14, 2021) financial statements of any action that would the Personal Care Division of Domtar Corporation for the fiscal quarter ended March 31, 2021, including the combined balance sheet as of March 31, 2021 and the related combined statements of earnings (iloss) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, and comprehensive income (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVieloss), cash flows and divisional equity for the fiscal quarter then ended; provided that all out-of-pocket costs of preparing such financial statements shall be borne in their entirety by Buyer.
(iiid) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential All information provided by the Sellers, the Transferred Companies or on behalf of Allergan their respective Affiliates or any of its Subsidiaries or Representatives representatives pursuant to this Section 7.9 to 4.12 shall be kept confidential in accordance with the Confidentiality Agreement; provided.
(e) For the avoidance of doubt and notwithstanding anything to the contrary herein, that Allergan Buyer acknowledges and agrees that it is not a condition to the confidentiality undertakings Closing or to any of its other obligations under this Agreement that will be obtained in connection with syndication it obtains financing for, or related to, any of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulestransactions contemplated by this Agreement.
Appears in 1 contract
Financing Cooperation. (a) Until Prior to the earlier of Effective Time, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and Company shall use its reasonable best efforts to and shall cause its Subsidiaries and shall use reasonable best efforts to cause their respective officersRepresentatives to, employees and advisors and other Representativesprovide all cooperation that is necessary, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance proper or advisable in connection with the Debt Financing as may be reasonably requested by AbbVie in writing that is customary in connection with the arrangingParent, obtaining and syndication of the Financing, including using reasonable best efforts with respect toincluding:
(i) participating in making senior management and assisting with the due diligence, syndication or other marketing advisors of the Financing, including using reasonable best efforts with respect Company and its Subsidiaries available to (A) the participation by members of management of Allergan with appropriate seniority participate in a reasonable number of meetings, presentations, road shows, drafting sessions, shows and due diligence sessions with proposed lenders or agents with respect to the Debt Financing, and in sessions with prospective lendersrating agencies or other syndication activities, investors and rating agencies, all at reasonable times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie providing reasonable access by Parent and any proposed lenders or agents, and their respective officers, employees, consultants and advisors (including legal valuation and accounting advisors) to the books and records, properties, Company Employees and Representatives and assisting with due diligence activities relating to the Company’s and its Financing Sources with historical Subsidiaries’ financial information, all at reasonable times and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable typeupon reasonable notice;
(iii) providing assisting with the preparation of and, subject to AbbVie’s legal counsel the occurrence of the Effective Time, executing and its independent auditors such customary documents and delivering any pledge or security documents, guarantees, other customary information relating to Allergan and its Subsidiaries definitive financing documents, or other customary certificates (other than solvency certificates) as may be reasonably requested by Parent in connection with their delivery the Debt Financing (including the assumption of any customary negative assurance opinions existing Indebtedness of the Company or its Subsidiaries) and customary comfort letters relating to otherwise facilitating the Financingpledging of, and granting, recording and perfection of security interests in share certificates, securities and other collateral, and obtaining surveys and title insurance as reasonably requested by Parent;
(iv) causing Allergan’s independent auditors providing customary representation and authorization letters to provide the Financing Sources authorizing the distribution of Company information in documents provided to prospective lenders containing customary cooperation representations to the Financing Sources that the information provided by the Company (x) does not contain a material misstatement or omission and (y) with respect to information to be included public side versions of such documents, if any, does not include material non-public information about the FinancingCompany or its Subsidiaries;
(v) requesting and cooperating in obtaining the consents customary Lien terminations and instruments of Allergan’s independent auditors discharge, relating to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities Indebtedness of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan Company and its Subsidiaries;
(vi) assisting Parent with its preparation of pro forma financial information and pro forma financial statements and other materials for rating agency presentations, bank information memoranda, business projections and similar documents used in connection with the Debt Financing;
(vii) assisting in procuring any necessary rating agency ratings or approvals and participating in a reasonable number of sessions with rating agencies, all at reasonable times and upon reasonable notice;
(viii) using reasonable best efforts to cause its independent accountants and former independent accountants to provide reasonable assistance and cooperation to Parent, including participating in due diligence sessions, assisting in the preparation of any pro forma financial statements to be included in the materials relating to the Debt Financing and providing documents consent for the use of their audit reports relating to the Company in materials relating to the Debt Financing, as reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion)Parent;
(ix) procuring furnishing to Parent and its Financing Sources as promptly as practicable (A) all financial statements of the Company and its Subsidiaries that are necessary to satisfy the condition set forth in paragraph 5 of Exhibit C of the Commitment Letter, (B) the financial information of the Company and its Subsidiaries necessary for Parent to prepare any pro forma financial statements for the historical periods required by paragraph 6 of Exhibit C of the Commitment Letter (provided, for the avoidance of doubt, that the Company and its Subsidiaries shall not be responsible for the preparation of such pro forma financial statements or any related pro forma adjustments or, without limitation of the cooperation required by ýSection 6.17(d), any conversion or reconciliation of Company Financial Statements) and (C) such other financial and other pertinent information regarding the Company and its Subsidiaries (including information regarding the business, operations and financial projections thereof) as may be reasonably requested by Parent to assist in the preparation of a customary confidential information memorandum or other customary information documents used in financings of the type contemplated by the Commitment Letter and any supplements thereto (all such financial statements, financial and other information, the “Required Information”);
(x) using commercially reasonable efforts to assist Parent in ensuring that the syndication efforts benefit from the existing banking relationships of the Company and its Subsidiaries;
(xi) furnishing to Parent and its Financing Sources at least five (5) Business Days prior to the anticipated Effective Time, all documentation and other information about the Company and its Subsidiaries required by applicable “know your customer” and anti-money laundering rules and regulations (including the Patriot Act) to the extent requested at least ten (10) calendar days prior to the anticipated Effective Time, as required to be delivered pursuant to the Commitment Letter or that is otherwise necessary to satisfy the conditions in paragraph 10 in Exhibit C thereof; and
(xii) subject to the occurrence of the Effective Time, taking all corporate actions necessary to permit consummation of the Debt Financing as may be reasonably requested by Parent. The Company hereby consents to the reasonable use of all of Allergan’s its and its Subsidiaries’ logos in connection with the Financing (Debt Financing; provided that such logos are used solely in a manner that is not intended to and is not or reasonably likely to harm or disparage Allergan the Company or any of its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Company or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (their logos and on such other customary terms and conditions as the Company shall reasonably impose. It is understood by the parties hereto that information provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts by the Company pursuant to cause any such information to Section 6.10(a) may be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, prospective lenders and investors in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(bsyndication and marketing of the Debt Financing, in each case subject to confidentiality undertakings from such prospective lenders and investors customary for a syndication process (such as the confidentiality provisions contained in customary “bank books”) and subject to customary acknowledgements from such lenders and investors as to the receipt of material non-public information in compliance with applicable law (to the extent material non-public information is disclosed), Allergan shall, and that such disclosure shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel not be restricted by the existing Confidentiality Agreement between the parties.
(b) Notwithstanding anything in this Section 6.10 to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel contrary, in fulfilling its obligations pursuant to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered))this Section 6.10, (vi) be an issuer or other obligor with respect nothing in this Section 6.10 shall require cooperation to the Financing prior extent that it would (A) cause any condition to the Completion, Closing set forth in Sections 7.01 or 7.02 to not be satisfied or otherwise cause any breach of this Agreement (vi) commence including any Allergan Note Offers and Consent Solicitations representations or (vii) prepare any pro forma financial information or projectionswarranties thereunder), (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) unreasonably interfere unreasonably with the ongoing business or operations of Allergan the Company or its Subsidiaries, (iiC) cause any representation the Company or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries to incur Liability in connection with the Debt Financing prior to the Effective Time (unless waived by AbbVieother than in connection with customary representation and authorization letters and other than such Liabilities that Parent commits to reimburse), (iiiD) cause any director, officer or employee of the Company or shareholder of Allergan or any of its Subsidiaries to incur any personal liability liability, (E) in the reasonable judgment of the Company after consultation with its outside legal counsel, (x) result in the material contravention of, or (iv) could reasonably be expected to result in a material violation or breach of, or a default under, any material Applicable Laws or under any Material Contract or (y) require the Company to which Allergan provide access to or disclose information that the Company determines would result in a loss or waiver of attorney-client privilege of the Company or its Subsidiaries (in each case it being agreed that the Company shall give notice to Parent of the fact that it is withholding such information or documents pursuant to this clause (E), and thereafter the Company and Parent shall reasonably cooperate to cause such information to be provided in a manner that would not reasonably be expected to violate the applicable restriction or waive the applicable privilege or protection) or (F) require the Company to prepare separate financial statements for any Subsidiary of the Company, (ii) none of the Company or any of its Subsidiaries is a partyshall be required to execute and deliver any Definitive Agreements or other agreements, pledge or security documents, or other certificates or documents in connection with the Organizational Documents Debt Financing that are effective prior to the Effective Time (other than any customary representation or authorization letters), (iii) none of Allergan the Board of Directors (or equivalent bodies) of the Company and its Subsidiaries shall be required to pass any resolution or take any similar actions approving the Debt Financing that are effective prior to the Effective Time, (iv) none of the Company, its Subsidiaries or its Representatives shall be required to pay any applicable Law. AbbVie shall cause all non-public commitment or other confidential information provided fee or provide any security or incur any other Liability in connection with any Debt Financing prior to the Effective Time and (v) Parent shall, upon the request of the Company, reimburse the Company for all reasonable and documented out-of-pocket costs (including attorneys’ fees) incurred by or on behalf of Allergan the Company or any of its Subsidiaries in connection with such cooperation. Parent shall indemnify and hold harmless the Company and its Subsidiaries and their respective pre-Closing directors, officers, employees and Representatives from and against any and all losses or Representatives damages actually suffered or incurred by them directly in connection with the arrangement of any such Debt Financing and any cooperation or other actions taken pursuant to this Section 7.9 6.10 (other than to be kept confidential in accordance with the Confidentiality Agreement; providedextent related to information, that Allergan acknowledges and agrees that cooperation or other actions provided by the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use Company, its Subsidiaries or their respective pre-Closing directors, officers, employees or Representatives), except in the syndication event such loss or damage arises out of acquisitionor results from the gross negligence, willful misconduct, bad faith or intentional breach of its obligations hereunder by the Company, its Subsidiaries or their respective pre-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesClosing directors, officers, employees or Representatives.
Appears in 1 contract
Financing Cooperation. (a) Until The Parties acknowledge and agree that, prior to the earlier Closing Date, subject to the limitations set forth herein, including in Section 7.1 and Section 7.13(b), the Purchaser and/ or any of its subsidiaries may obtain debt and/or equity financing in connection with the Completion Transactions (such financing, collectively, the "Pre-Acquisition Financing") and subject to the valid termination limitations set forth herein, including in Section 7.1 and Section 7.13(b), during the period from the date of this Agreement pursuant to the Closing Date, the Sellers and in accordance with Article 9, Allergan the Acquired Companies shall use its their respective reasonable best effortsefforts to cooperate in good faith to implement any necessary, appropriate or desirable arrangements in connection with arranging and obtaining the Pre-Acquisition Financing by the Purchaser or any of its subsidiaries (and any credit facilities, indentures or other documents governing or relating thereto), which cooperation shall be limited to the Sellers and the Acquired Companies using their reasonable best efforts to, and shall cause each of its causing their Subsidiaries and their respective officers, directors and employees (collectively, the "Financing Cooperation Parties") to use its their reasonable best effortsefforts to, and shall use its using their reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisorsas applicable, to use their take the following actions as may be reasonably necessary, customary or desirable for a syndicated credit facility and/or a public or private securities offering by the Purchaser in connection with the structuring, marketing and execution of any Pre-Acquisition Financing: (i) participating in a reasonable number of virtual meetings, drafting sessions, conference calls, road shows, due diligence sessions, rating agency presentations and similar meetings in connection with such Pre-Acquisition Financing and preparing customary materials in connection therewith, in each case, upon reasonable advance notice, (ii) assisting with the preparation of customary marketing materials and disclosure documents, including private placement memoranda, information memoranda, prospectuses and similar documents and delivering due diligence materials in connection with the preparation therewith, (iii) providing reasonably available financial statements and information, operational data and forward-looking information (including information reasonably necessary or advisable to assist Purchaser in preparing pro forma financial information and assisting in the preparation of disclosure schedules in connection with the loan documentation) reasonably required or reasonably requested by the Purchaser or any investment or commercial banks appointed in any capacity with respect to any such Pre-Acquisition Financing to be included therein, (iv) facilitating the execution and delivery of definitive documentation in connection with the Pre-Acquisition Financing and facilitating the pledging of collateral and the perfection of the applicable security interests in connection with the Pre-Acquisition Financing, as may be reasonably required or reasonably requested by another Party or any investment or commercial banks appointed in any capacity with respect to any such Pre-Acquisition Financing, (v) delivering customary comfort letters, authorization and/or representation letters (limited to information applicable to the Sellers and/or the Acquired Companies contained in the applicable marketing materials) and reasonably available financial information that is reasonably necessary to enable Purchaser or its applicable subsidiary to deliver a customary solvency certificate in connection with the Pre-Acquisition Financing, (vi) delivering or using reasonable best effortsefforts to procure the delivery of, as applicable, insurance certificates as may be reasonably required or reasonably requested by another Party or any investment or commercial banks appointed in any capacity with respect to provide to AbbVie any such Pre-Acquisition Financing, (vii) providing customary information required by any investment or commercial banks in connection with applicable "know your customer" and its Subsidiaries such assistance anti-money laundering rules and regulations, and other customary documents as may be reasonably requested by AbbVie any party to any such Pre-Acquisition Financing (including, without limitation, any investment or commercial banks appointed in writing that is customary in connection with the arranging, obtaining and syndication of the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication any capacity or other marketing of the Financing, including using reasonable best efforts as prospective lenders or purchasers with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable noticeany such Pre-Acquisition Financing), (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(vviii) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors accountants as experts in any Marketing Material and registration statements and related government filings filed reasonably required or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably as may be reasonable requested by AbbVie or the Financing Sources relating to Purchaser, (ix) ensuring the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice syndication efforts in respect of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms Pre-Acquisition Financing benefits from its existing lending relationships of the definitive documents governing such indebtedness Acquired Companies, (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ixx) procuring consents consenting to the reasonable use of all of Allergan’s logos such Acquired Companies' trademarks in connection with the Financing (provided any such Pre-Acquisition Financing; provided, that such logos are trademarks shall be used solely in a manner that is not intended to and is not to, nor reasonably likely to to, harm or disparage Allergan or its Subsidiaries the Acquired Companies or the reputation or goodwill of Allergan the Acquired Companies, (xi) assisting in attempting to obtain corporate or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date facilities ratings in connection with any such Pre-Acquisition Financing and (xii) (A) causing the Financing taking of any corporate and other actions and (B) providing any additional, customary information that relates is reasonably available to applicable “know your customer” and antithe Sellers and/or the Acquired Companies, in each case, that is reasonably necessary or advisable in order to facilitate any such Pre-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Acquisition Financing.
(b) Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below7.13, (A) none of Allergan nor any of its Subsidiaries the Financing Cooperation Parties or their Representatives shall be required to take or permit the taking of (x) enter into any action pursuant Pre-Acquisition Financing, agree to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee fees, reimburse any expenses, provide any security, provide any agreements (other than authorization letters (as described in clause (a) above), payoff letters and prepayment notices), opinions, certificates or other instruments, or otherwise incur any liability (other than thirdunder any documentation arising as a result of any Pre-party costs and expenses Acquisition Financing or give any indemnities, in each case, that are to be promptly reimbursed by AbbVie not contingent upon request by Allergan the occurrence of the Closing, (y) disclose any information pursuant to this Section 7.9(c))7.13 to the extent that (i) in the reasonable good faith judgment of such party, any applicable Laws require such party or its subsidiaries to restrict or prohibit access to any such information, (ii) execute in the reasonable good faith judgment of such party, the information is subject to confidentiality obligations to a third party or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any disclosure of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that or document would not result in the loss of attorney-client privilege; provided, further, that with respect to clauses (i) through (iii) of this Section 7.13(b), the Parties, as applicable, shall use their commercially reasonable efforts to (1) obtain the required consent of any third party necessary to provide such disclosure, (2) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to the Parties and (3) in the case of clauses (i) through (iii), utilize the procedures of a joint defense agreement or implement such other techniques if the Parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Laws or jeopardizing such privilege or (z) deliver or provide (or cause to be delivered or provided by its Representatives) (i) any legal opinions, (ii) any audited financial statements (other than (i) the Audited Financial Statements, (ii) audited financial statements prepared in accordance with GAAP as of and for the year ended December 31, 2017 made available to the Purchaser and its Representatives, and (iii) if the Closing has not occurred prior to March 31, 2021, to the extent reasonably available to Seller and/or the Acquired Companies and as would be customarily required in a financing such as any Pre-Transaction Financing and are reasonably requested by the Purchaser or any investment or commercial banks appointed in any capacity with respect to any such privilegePre-Acquisition Financing, audited financial statements for the three fiscal-year period ended December 31, 2020, prepared in accordance with GAAP, which shall include consolidated statements of operations, changes in members equity and cash flows for the three-year period ended December 31, 2020), (iv) deliver any financial statements or cause information prepared in accordance with the rules and regulations promulgated in accordance with the Securities Act, (v) any compensation discussion and analysis required by Item 402 of Regulation S-K and information regarding executive compensation related to SEC Releases Nos. 33-8732A, 34-54302A and IC 27444A, (vi) "segmented reporting", (vii) any pro forma cost savings, capitalization or post-closing adjustments, or (viii) any projections or other information in connection with purchase price accounting. For the avoidance of doubt, notwithstanding clauses (vii) and (viii) hereof, the Financing Cooperation Parties shall use their reasonable best efforts to assist the Purchaser and its Representatives Representatives, as and to deliver the extent reasonably requested, in the Purchaser’s development of its estimates of pro forma cost savings, capitalization and post-closing adjustments and projections and other information in connection with purchase price accounting, for use in any legal opinion or negative assurance letter (exceptPre-Transaction Financing. The Purchaser shall, promptly upon request by the Seller, reimburse the Acquired Companies for all reasonable and documented out-of-pocket costs and expenses incurred by them in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion cooperation of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained persons in connection with syndication the Pre-Acquisition Financing contemplated by this Section 7.13. For the avoidance of doubt, the Financing will be in receipt of any financing, including the proceeds of any Pre-Acquisition Financing, is not a form customary for use in condition to the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesPurchaser’s obligations under this Agreement.
Appears in 1 contract
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan The Company shall use its commercially reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to actively assist (and to cause its the Subsidiaries of the Company to actively assist) Parent, Merger Sub and their respective officersthe Lenders in completing a syndication with respect to the Debt Financing, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries as such assistance as may be reasonably requested by AbbVie in writing Parent from time to time, including: (i) using commercially reasonable efforts to ensure that is customary the syndication efforts benefit from the Company’s and its Subsidiaries’ existing banking relationships; (ii) facilitating direct contact, following reasonable advance notice and during normal business hours, between senior management of the Company and the proposed Lenders; (iii) using commercially reasonable efforts to prepare and provide to the Lenders all reasonable information with respect to the Company and its Subsidiaries, including all financial information, projections and other forward-looking information (such projections and other forward-looking information, the “Projections”), as the Commitment Parties may reasonably request in connection with the arranging, obtaining Debt Financing and arrangement and syndication of the Financing, including using reasonable best efforts with respect to:
thereof; (iiv) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each caseassisting, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as assistance may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating by Parent from time to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation time, with the Financing;
(v) obtaining the consents preparation of Allergan’s independent auditors one or more confidential information memoranda and other marketing materials to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or be used in connection with the syndication associated with the Debt Financing;
; (v) facilitating the participation, following reasonable advance notice and during normal business hours, by the Company’s officers in meetings with prospective Lenders; (vi) obtaining Allergan’s independent auditors’ customary comfort letters furnishing, upon reasonable request and assistance with for no fee (other than the accounting due diligence activities reimbursement of any out-of-pocket expenses), to the Commitment Parties electronic versions of the trademarks, service marks and corporate logos of the Company and its Subsidiaries solely for the purpose of facilitating the syndication of the Debt Financing Sources;
(with no right of assignment or transfer); (vii) causing delivering to the administrative agent under the Debt Financing a secretary’s certificate of the Company and each Subsidiary of the Company that becomes a guarantor under the Debt Financing attaching the organizational documents, resolutions or other action approving the Debt Financing, and good standing and incumbency certificates with respect to benefit from the existing lender relationships of Allergan Company; and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating using commercially reasonable efforts to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of provide all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan with respect to the Company and its Subsidiaries as is that shall have been reasonably requested in writing by AbbVie such administrative agent at least ten (10) Business Days in advance seven days prior to the Closing Date that such administrative agent reasonably determines, based on the advice of the Completion Date in connection with the Financing that relates to legal counsel, is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the requirements of the USA PATRIOT ACTAct, Title III of Pub. Notwithstanding anything L. 107-56 (signed into law on October 26, 2001). No breach by the Company of this covenant shall be deemed material for purposes of this Agreement, nor shall any such breach give rise to any liability or obligation on the part of the Company or any rights on the part of Parent or Merger Sub, in each case, unless such breach is a material breach and is the primary cause of the Debt Financing not being funded under the Debt Commitment Letter. Parent shall indemnify and hold harmless the Company, its Subsidiaries and the Representatives for any liability, cost or expense (including all travel and administrative expenses and all reasonable fees of counsel, accountants and other financial advisors to the contrary Company) arising out of their compliance with the foregoing covenants. All Lenders and Commitment Parties shall be deemed to be “Representatives” (as defined in this Section 7.9(athe Confidentiality Agreement) or Section 7.9(b) belowof Parent, (A) none of Allergan nor and all information obtained by Parent, any of its Subsidiaries representatives, any Lender or any Commitment Party shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior subject to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light provisions of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant Confidentiality Agreement. Any failure by any Lender or Commitment Party to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance comply with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication or any act or omission by any Lender or Commitment Party that, if committed by Parent, would constitute a breach of the Financing will Confidentiality Agreement, shall be in deemed to be a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements breach of the Panel and the Takeover RulesConfidentiality Agreement by Parent for which Parent shall be responsible.
(b) For purposes of this Agreement:
Appears in 1 contract
Financing Cooperation. (a) Until Prior to the earlier of Closing or, if earlier, the Completion and the valid termination of this Agreement pursuant to Agreement, the Company will, and in accordance with Article 9will cause its Subsidiaries to, Allergan shall use its reasonable best effortsefforts (at Parent’s sole cost and expense) to, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie the appropriate Representatives of the Company and its Subsidiaries to, provide such assistance cooperation as may be is customary and reasonably requested by AbbVie in writing that is customary Parent in connection with any Debt Financing, which cooperation will include (1) as promptly as practicable, furnishing Parent with the arranging, obtaining Required Information and syndication of other customary or pertinent information regarding the Company and its Subsidiaries reasonably requested by Parent (or the Debt Financing Sources) in connection with such Debt Financing, including using reasonable best efforts with respect to:
preliminary or “flash” information if requested and information relating to the rental fleet of the Company and its Subsidiaries, (i2) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and drafting sessions with prospective lenders, investors providers or potential providers of the Debt Financing and rating agencies, agencies during normal business hours and at mutually agreed times and at locations reasonably acceptable to Allergan and upon reasonable noticelocations, (B3) reasonably assisting with AbbVie’s Parent in the preparation of customary materials for customarily requested to be used in connection with obtaining the Debt Financing, including rating agency presentations, road show materials, bank information memoranda, credit agreements, registration statements, prospectuses, offering memoranda, bank syndication materials, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations memoranda and similar documents customarily required in connection with the Financing (collectivelyDebt Financing, “Marketing Material”) including the marketing and due diligence sessions related theretosyndication thereof, (C4) delivering assisting Parent with Parent’s preparation of pro forma financial information and consenting to projections, estimates of cost savings, synergies and post-closing adjustments, (5) reasonably cooperating with the inclusion or incorporation in marketing efforts for any SEC filing related to the Financing portion of the historical audited consolidated financial statements Debt Financing, including using its reasonable best efforts to ensure that any syndication efforts benefit from its existing lending relationships and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings using reasonable best efforts to assist Parent in obtaining any credit ratings in connection with the Marketing Material Debt Financing, (in each case, as applicable, subject 6) providing customary authorization letters authorizing the distribution of information provided by the Company or its Subsidiaries to prospective lenders and containing a customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its representation to the Debt Financing Sources with historical financial for the Debt Financing that such information provided by the Company or its Subsidiaries does not contain a material misstatement or omission and other containing a representation to the Debt Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Subsidiaries or its or their securities, (7) causing the independent accountants of the Company to (A) render customary information “comfort letters” (collectively, the “Financing Information”including customary negative assurance comfort and change period comfort) with respect to Allergan financial information regarding the Company and its Subsidiaries as is reasonably requested contained in any materials relating to the Debt Financing, (B) provide consents for use of their reports and opinions in any documents filed or furnished by AbbVie Parent with the SEC or its in any other materials or disclosures relating to the Debt Financing Sources and customarily required in Marketing Material for Financings which financial information of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan Company and its Subsidiaries is included and (AC) participate in a reasonable number of the type that would be required by Regulation S-X due diligence sessions, (8) delivering information and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements documentation related to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan Company and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of prior to the Completion Closing Date such documentation and other information about Allergan and its Subsidiaries as is required and reasonably requested in writing by AbbVie the Debt Financing Sources at least ten (10) Business Days in advance of prior to the Completion Closing Date in connection with the Financing that relates respect to compliance under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation, the USA PATRIOT ACT. Notwithstanding anything U.S.A. Patriot Act of 2001 and rules adopted by the Financial Crimes Enforcement Network of the U.S. Treasury Department, (9) (A) assisting with the pledging of collateral for the Debt Financing, including by permitting the evaluation or appraisal of assets, assisting with field audits, due diligence examinations and evaluations of the current assets, inventory and cash management systems of the Company and its Subsidiaries, (B) assisting with obtaining landlord waivers, consents or estoppels, and (C) assisting with obtaining releases of existing Liens, (10) taking all corporate actions, subject to the contrary occurrence of the Closing, reasonably requested by Parent to permit the consummation of the Debt Financing, (11) cooperating in satisfying the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent the satisfaction of such condition requires the cooperation of, or is within the control of, the Company and its Subsidiaries and (12) assisting with the preparation and execution of definitive Debt Financing Documents (including any guarantee, pledge and security documents, supplemental indentures, currency or interest rate hedging arrangements, other definitive financing documents, or other certificates or documents as may be reasonably requested by Parent or the Debt Financing Sources), and the schedules and exhibits thereto, in each case, as may be reasonably requested by Parent.
(b) Nothing in this Section 7.9(a7.19 will require the Company Group to (i) waive or Section 7.9(bamend 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 Closing Date, for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent; (ii) belowwithout limiting its obligations to deliver condition redemption notices, executed Payoff Letters, termination notices, payoff letters, bills of sale and Lien release documentation pursuant to Sections 7.16 and 7.17, 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) give any indemnities in connection with the Debt Financing that are effective prior to the Closing Date, and only to the extent previously agreed in writing by the Company; (iv) take any action that, in the good faith determination of the Company, would unreasonably interfere with the conduct of the business of the Company Group in any material respect; (v) except to the extent contemplated with respect to Required Information, prepare separate financial statements for any of the Company Group to the extent not customarily prepared by the Company Group and to the extent such preparation would be unduly burdensome or change any fiscal period; (vi) adopt any resolutions, execute any consents or otherwise take any corporate or similar action to be effective prior to the Closing; (vii) provide any legal opinion on or prior to the Closing; (viii) take any action that will conflict with or violate its organizational documents or any applicable laws in any material respect or would result in a material violation or breach of, or default under, any material agreement to which any member of the Company Group is a party or (ix) prepare or provide Excluded Information. In addition, no action, liability or obligation of the Company Group or any of its Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to the Debt Financing (other than (i) to the extent contemplated with respect to Required Information, (Aii) none customary representation letters to auditors, (iii) in connection with Sections 7.16 and 7.17 or (iv) customary authorization letters (including with respect to the presence or absence of Allergan material non-public information and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing based on financial information and data derived from the Company’s historical books and records)) will be effective until the Closing Date, and the Company Group will not be required to take any action pursuant to any certificate, agreement, arrangement, document or instrument (other than (i) to the extent contemplated with respect to Required Information, (ii) customary representation letters, (iii) in connection with Sections 7.16 and 7.17 or (iv) 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 based on financial information and data derived from the Company’s historical books and records)) that is not contingent on the occurrence of the Closing or that must be effective prior to the Closing Date. Except in connection with the delivery of a chief financial officer certificate in connection with any Required Information, nothing in this Section 7.19 will require (1) any officer, employee or Representative of the Company Group to deliver any certificate or opinion or take any other action under this Section 7.19 that would reasonably be expected to result in personal liability to such officer, employee or Representative; or (2) the Company Board to approve any Debt Financing or Contracts related thereto, effective prior to the Closing Date. For the avoidance of doubt, neither the Company nor any of its Subsidiaries shall be required to take be an issuer or permit obligor with respect to the taking Debt Financing prior to the Closing Date.
(c) The Company shall not be required to provide any information the disclosure of which is prohibited or restricted under applicable Law or is legally privileged; provided, that Parent is notified of the nature of such information for which such disclosure is prohibited.
(d) Without limiting the obligation to provide any action non-public or other confidential information by or on behalf of the Company, all such information provided to Parent or its Affiliates or any of their respective Representatives pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment 7.19 will be kept confidential in accordance with the terms of the Confidentiality Agreement or other fee confidentiality obligations that are substantially similar to those contained in the Confidentiality Agreement or, with respect to the Debt Financing Sources, on customary market terms; provided, that, nothing in this clause (d) will limit the disclosure of such non-public or incur any liability other confidential information of the type that is customarily included in offering documents or marketing materials for the Debt Financing.
(e) Parent shall (x) at the Closing (or, if the Closing does not occur, promptly), upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company in connection with the cooperation of the Company contemplated by this Section 7.19 (other than third-party the preparation of the Company’s financial statements in the ordinary course of business) and (y) indemnify and hold harmless the Company and its Representatives from and against any and all damages, losses, charges, liabilities, claims, demands, actions, suits, proceedings, payments, judgments, settlements, assessments, deficiencies, taxes, interest, penalties and costs and expenses that are to be promptly reimbursed suffered or incurred by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification them in connection with the arrangement of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur Debt Financing (except (x) other than to the extent required arising from inaccuracy of any historical financial information furnished in writing by Section 7.9(bor on behalf of the Company, its Affiliates or its or its Affiliates’ Representatives or the gross negligence, bad faith, willful misconduct or fraud of the Company, its Affiliates, or its or its Affiliates’ Representatives), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating . The Company hereby consents to the execution thereof use of its and its Subsidiaries’ trademarks in connection with the Debt Financing; provided that would all such uses are in a manner that is not conflict with applicable Law and would be accurate in light intended to or reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the facts and circumstances at the time delivered and Company or its Subsidiaries.
(zf) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan The Company shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause periodically update any Required Information provided to Parent as may be necessary so that such Required Information is (i) Compliant and (ii) meets the applicable requirements set forth in the definition of “Required Information”, in each case throughout the pendency of the Marketing Period. For the avoidance of doubt, subject to the terms and provisions of this Section 7.19, Parent may, to most effectively access the financing markets, request the cooperation of the Company and its Subsidiaries under this Section 7.19 at any time, and from time to time and on multiple occasions, between the date of this Agreement and the Closing; provided that, for the avoidance of doubt, the Marketing Period shall not be applicable as to each attempt to access the markets. The Company agrees to (A) file all reports on Form 10-K and Form 10-Q and Form 8-K (to the extent required to include financial information pursuant to Item 9.01 thereof) and (B) use its reasonable best efforts to file all other Forms 8-K, in each case, required to be filed with the SEC pursuant to the Exchange Act prior to the Closing Date in accordance with the periods required by the Exchange Act. If, in connection with a marketing effort contemplated by any Debt Financing Sources in connection with the Debt Financing, Parent reasonably requests the Company to file a Current Report on Form 8-K pursuant to the Exchange Act that contains material non-public information with respect to the Company and its Subsidiaries, which Parent reasonably determines (and which the Company does not unreasonably object) to include in a customary offering document for the Debt Financing, then the Company shall file a Current Report on Form 8-K containing such material non-public information (it being understood that any material non-public information included in Required Information will be included in such Current Report on Form 8-K).
(g) The Company hereby consents to the use of the logos of the Company in connection with any such information to Debt Financing; provided that such logos shall be disclosed used solely in a manner that would is not result in intended or reasonably likely to harm, disparage or otherwise adversely affect the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan Company or its Subsidiaries, as applicable, to deliver a customary opinion of counsel their reputation or goodwill.
(h) Notwithstanding anything to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law contrary herein, ▇▇▇▇▇▇ and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan ▇▇▇▇▇▇ Sub each expressly acknowledges and agrees that neither the confidentiality undertakings that will be obtained availability, the terms nor the obtaining of any Debt Financing is in connection with syndication any manner a condition to the Closing or the obligations of each Parent and Merger Sub to consummate the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulestransactions contemplated by this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (H&E Equipment Services, Inc.)
Financing Cooperation. (a) Until Prior to the earlier Closing, the Company shall provide to Parent all cooperation reasonably requested by Parent to facilitate a Debt Financing of the Completion and Merger Consideration, including, but not limited to, the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its following:
(i) using commercially reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause the senior officers of each of the Company to participate in a reasonable number of requested meetings, presentations, due diligence sessions and drafting sessions in connection with any Debt Financing, including direct contact between senior management of the Company with any actual and potential Debt Financing Sources;
(ii) reasonably assist with the preparation of materials for bank information memoranda and similar documents reasonably required in connection with any Debt Financing;
(iii) request its independent accountants to provide reasonable assistance to Parent consistent with their customary practice (including to provide consent to Parent to prepare and use their respective officersaudit reports relating to the Company and issue any necessary “comfort letters,” in each case, employees on customary terms and advisors consistent with their customary practice in connection with any Debt Financing);
(iv) execute and deliver any credit agreements, notes, guarantee and collateral documents, hedging arrangements, pay-off letters, other definitive financing documents, a certificate of the chief financial officer or treasurer (or other comparable officer) of the Company that will be effective at the Closing certifying the solvency, after giving effect to the Closing, of the Company on a consolidated basis and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance customary certificates or documents as may be reasonably requested by AbbVie in writing that is customary in connection with Parent or any Debt Financing Source and otherwise reasonably facilitating the arranging, obtaining and syndication pledging of the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers)collateral;
(iiv) timely furnishing AbbVie provide customary authorization letters to any Debt Financing Source of any Debt Financing authorizing the distribution of information to prospective lenders (including customary 10b-5 and its Financing Sources with historical financial and other customary material non-public information representations) (collectively, the “Financing InformationAuthorization Letters”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with take such other actions as reasonably requested by Parent to facilitate the accounting due diligence activities satisfaction on a timely basis of all the Financing Sources;conditions precedent to the Debt Financing; and
(vii) causing within the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) time period required by any Debt Financing, providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationincluding, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) belowAct as, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs when and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b)any Debt Financing, applicable Allergan Supplemental Indenturesas determined by Parent in good faith.
(b) In no event shall Company be required to (1) bear any cost or expense, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above)pay any fee, (iii) provide access to or disclose information that Allergan incur any other actual or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, potential Liability in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Debt Financing prior to the CompletionClosing, (vi2) commence take any Allergan Note Offers and Consent Solicitations actions to the extent such actions would unreasonably interfere with its respective ongoing business or (vii) prepare any pro forma financial information or projectionsoperations, (B3) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business reasonably be expected to conflict with, or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material any violation or breach of, or a default under(with or without notice or lapse of time, or both) under any of their respective organizational and governing documents, any material Contract to which Allergan applicable Laws or the documents governing the Indebtedness or (4) execute or deliver, or take any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public corporate or other confidential information provided by action to adopt or on behalf of Allergan approve, any document, agreement, certificate or any of its Subsidiaries or Representatives pursuant instrument with respect to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings Debt Financing that will be obtained effective before the Closing Date (in connection with syndication of each case, other than the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesAuthorization Letters).
Appears in 1 contract
Financing Cooperation. (a) Until Prior to the earlier of Acceptance Time, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its Subsidiaries to to, use its reasonable best efforts, and shall use its reasonable best efforts to cause the respective Representatives of the Company and its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, Subsidiaries to provide to AbbVie Parent and its Subsidiaries Merger Sub such assistance cooperation in connection with the Financing as may be reasonably requested by AbbVie in writing that is customary in connection with the arranging, obtaining and syndication of the FinancingParent or Merger Sub, including using reasonable best efforts with respect to:
(i) participating assist in preparation for and assisting with the due diligenceparticipation, syndication or other marketing of the Financingupon reasonable advance notice, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetingsmeetings and calls (including customary one-on-one meetings with parties acting as lead arrangers, presentationsunderwriters, road showsbook-runners or agents for, and prospective lenders under, the Financing), drafting sessions, rating agency presentations, road shows and due diligence sessions (including accounting due diligence sessions);
(ii) assist Parent, Merger Sub and sessions their potential financing sources in the preparation of bank information memoranda and similar marketing documents for any of the Financing (including the provision of customary “backup” or factual support to the extent reasonably requested by the Financing Sources or any potential financing sources, or as otherwise reasonably required for purposes of the Financing), including the execution and delivery of customary representation letters in connection with bank information memoranda authorizing the distribution of information to prospective lenders, investors confirming the accuracy in all material respects (when taken together with all supplements or updates thereto) of the information provided and rating agenciesidentifying any portion of such information that constitutes material, at times non-public information regarding the Company or its Subsidiaries or their respective securities (in each case in accordance with customary syndication practices) and at locations containing a representation that the public-side version of such memoranda does not include material non-public information about the Company and its Subsidiaries or their securities;
(iii) reasonably acceptable cooperate with the customary marketing efforts of Parent, Merger Sub and their potential financing sources;
(iv) deliver, as promptly as reasonably practicable, to Allergan Parent, Merger Sub and upon reasonable noticetheir potential financing sources, the Required Information, and supplement the Required Information to the extent that any Required Information, to the Knowledge of the Company, contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, as soon as reasonably practicable after obtaining Knowledge thereof (it being understood that (A) to the extent any Required Information is contained in any Company SEC Documents, such inclusion shall constitute delivery to Parent and Merger Sub hereunder and (B) assisting with AbbVie’s preparation notwithstanding anything to the contrary, in no circumstances shall the Company be required to provide any financial statements hereunder that are not required to be included in any Company SEC Document, including any Company SEC Documents filed after the date hereof);
(v) deliver to Parent and Merger Sub (A) within 40 days after the end of any fiscal quarter that is not a fiscal year end, the unaudited consolidated balance sheet of the Company as of the end of such quarter and the related unaudited consolidated statements of operations and cash flows and (B) within 75 days after the end of any fiscal year, the audited consolidated balance sheet of the Company as of the end of such fiscal year and the related audited consolidated statements of operations and cash flows (it being understood that (A) to the extent any Required Information is contained in any Company SEC Documents, such inclusion shall constitute delivery to Parent and Merger Sub hereunder and (B) notwithstanding anything to the contrary, in no circumstances shall the Company be required to provide any financial statements hereunder that are not required to be included in any Company SEC Document, including any Company SEC Documents filed after the date hereof);
(vi) obtain customary materials for registration statementsconsents, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations approvals and similar documents authorizations required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sourcesby Parent;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan reasonably cooperate in any customary process required for due diligence and its Subsidiariesverification;
(viii) providing documents take all customary corporate actions reasonably requested by AbbVie Parent and Merger Sub that are necessary or advisable to permit the Financing Sources relating consummation of the Financing, including with respect to corporate actions of the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries Surviving Corporation to be repaid or refinanced on effected immediately following the Completion Date Acceptance Time and any financing, and to permit the release proceeds thereof, together with the cash of related liens and/or guarantees (the Company and its Subsidiaries, if any) effected thereby, to be made available at the Acceptance Time to consummate the transactions contemplated hereby, and including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtednessas required under, or in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);furtherance of, Section 7.12; and
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing no later than five (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (35) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing after request by AbbVie Parent at least ten (10) Business Days in advance of prior to the Completion Date in connection with Closing Date, provide all documentation and other information relating to the Financing that relates to Company and its Subsidiaries required by applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACTAct to the extent requested by Parent, Merger Sub or their potential financing sources.
(b) The Company hereby consents to the use of all of its and its Subsidiaries’ logos in connection with the Financing; provided that such logos are used in a manner that is not intended to or reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries. Notwithstanding any other provision set forth herein or in any other agreement between the Company and Parent (or their respective Affiliates), the Company agrees that Parent and its Affiliates may share customary projections with respect to the Company and its business, which are hereby approved for distribution by the Company, with their potential financing sources and other prospective lenders in connection with any marketing efforts undertaken as part of the Financing; provided that the recipients of such information agree to be bound by customary confidentiality arrangements. Notwithstanding anything to the contrary in this Agreement, none of the Company, any of the Company’s Subsidiaries or any of its or their respective directors or officers or other personnel shall be required by this Section 7.9(a9.07 to: (i) take any action or Section 7.9(b) below, provide any assistance (A) none that unreasonably interferes in any material respect with the ongoing operations of Allergan nor the Company or its Subsidiaries, (B) to the extent it would reasonably be expected to cause any representation or warranty of the Company in this Agreement to be breached or any Offer Condition to fail to be satisfied or (C) that the Company reasonably believes would result in a violation by it or any of its Subsidiaries shall be required of any Material Contract or any material confidentiality arrangement (having taken reasonable steps to procure permission to take the action or permit provide the taking assistance requested of the Company or its applicable Subsidiary) or the loss of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment legal or other fee applicable privilege by the Company or incur any liability (other than third-party costs and expenses of its Subsidiaries in a manner that are would be materially adverse to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), their respective interests; (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case Contract that would be by its terms becomes effective prior to the Completion Closing Date or would be effective if the Completion does is not occur (except (x) capable of being terminated without liability to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Company or any of its Subsidiaries reasonably determines would jeopardize Affiliates upon the termination of this Agreement; (iii) except as otherwise expressly provided in this Agreement, take any attorney-client privilege of Allergan corporate or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, similar action in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b)Financing that is not conditioned on the occurrence of the Acceptance Time; (iv) except as set forth in clause (i)(C) above, Allergan shallagree to any amendment or modification, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel effective prior to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion Closing, of counsel any existing Contract to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), which it is a party; or (v) be an issuer pay any commitment or other obligor similar fee in connection with respect to the Financing prior to the CompletionAcceptance Time. In each case, (vi) commence any Allergan Note Offers the Company’s cooperation shall be at Parent’s written request, and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none Parent shall reimburse the Company for its reasonable and documented out-of-pocket expenses incurred in connection therewith. No Affiliate of the Allergan Board, officers Company as of Allergan, or directors and officers immediately prior to the Acceptance Time (other than its Subsidiaries) shall have any obligations under this Section 9.07 following the Acceptance Time.
(c) Notwithstanding the provisions of the Subsidiaries of Allergan shall be required Confidentiality Agreement, the Company hereby agrees with and consents to adopt resolutions the disclosure to any Financing Sources (or consents approving the agreementspotential financing sources) by Parent, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan Merger Sub or any of its Subsidiaries (unless waived by AbbVie), (iii) cause their respective Representatives of any director, officer or employee or shareholder of Allergan Required Information or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by the Company or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with this Section 9.07, for purposes of and in connection with the Confidentiality Agreement; providedFinancing (in the case of any nonpublic information with respect to the Company, solely to the extent that Allergan is subject to customary confidentiality arrangements).
(d) Parent acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of obtaining the Financing will is not a condition to Closing. For the avoidance of doubt, if the Financing has not been obtained, Parent shall, subject to the terms and conditions of this Agreement, continue to be obligated to consummate the transactions contemplated by this Agreement, until such time as the Agreement is terminated in a form customary for use accordance with its terms; provided, in any case, that the syndication of acquisition-related debt during a takeover offer period in compliance with Offer Conditions have been satisfied or, to the requirements of the Panel and the Takeover Rulesextent permitted by applicable Law, waived.
Appears in 1 contract
Sources: Merger Agreement (Zogenix, Inc.)
Financing Cooperation. (a) Until In connection with the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9Acquisition Financing, Allergan NPC shall use its reasonable best effortsprovide, and shall cause each of its Subsidiaries to use its reasonable best effortsprovide, and shall use its and their respective reasonable best efforts to cause its and their respective the officers, employees employees, representatives and advisors and other Representativesadvisors, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie of NPC and its Subsidiaries such assistance to provide (in all cases prior to the Closing), reasonable cooperation in connection with the arrangement of the Acquisition Financing as may be reasonably requested by AbbVie in writing the Purchaser and that is necessary, customary or advisable in connection with the arrangingPurchaser’s efforts to obtain the Acquisition Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of NPC or any of its Subsidiaries), obtaining and syndication of the Financing, including using reasonable best efforts with respect to:
including: (i) participating participation in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentationsdrafting sessions, road shows, drafting sessions, rating agency presentations and due diligence sessions and sessions furnishing the Purchaser and its financing sources with prospective lenders, investors the financial information regarding NPC and rating agencies, at times and at locations reasonably acceptable its Subsidiaries that is required to Allergan and upon reasonable notice, be delivered pursuant to the Debt Commitment Letters; (Bii) assisting with AbbVie’s the Purchaser and its financing sources in the preparation of (A) a customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations materials for any bank financing and similar documents required in connection with any of the Acquisition Financing and (B) materials for rating agency presentations; (iii) facilitating customary due diligence, including taking all actions reasonably necessary to (A) permit the prospective lenders involved in the Debt Financing to evaluate NPC’s and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (B) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the Financing foregoing; (collectively, “Marketing Material”iv) and due diligence sessions related thereto, (C) delivering and consenting using reasonable best efforts to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVieobtain from NPC’s legal counsel and its independent auditors such customary documents accountants’ comfort letters and other customary information relating to Allergan and its Subsidiaries reports as may be reasonably requested by Purchaser and the consent of such auditors to the use of their reports in connection with their delivery of any customary negative assurance opinions and customary comfort letters materials relating to the Acquisition Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
; (v) obtaining the consents of Allergan’s independent auditors using reasonable best efforts to use their audit reports obtain such consents, legal opinions, surveys and title insurance as reasonably requested by Purchaser; (vi) entering into one or more credit or other agreements on the audited Historical Financial Statements of Allergan and terms satisfactory to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used Purchaser in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Debt Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested extent direct borrowings or debt incurrences by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan NPC or any of its Subsidiaries are contemplated by the Debt Commitment Letters; (vii) executing and delivering any pledge and security documents, currency or interest hedging arrangements, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Purchaser (including a certificate of the chief financial officer of NPC or its Subsidiaries with respect to be repaid solvency matters); and (viii) taking, or refinanced on at NPC’s option, appointing a representative of Purchaser to take, all corporate actions, subject to the Completion Date occurrence of the Closing, reasonably requested by Purchaser to permit the consummation of the Debt Financing and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice direct borrowing or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use incurrence of all of Allergan’s logos in connection with the proceeds of the Debt Financing (by NPC and/or its Subsidiaries; provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance none of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulationsSellers, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan NPC nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other similar fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, Liability in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Acquisition Financing prior to the CompletionClosing for which it is not reimbursed or indemnified by Purchaser (it being understood, (vi) commence however, that NPC shall bear all costs and expenses of its annual audit); provided further that the effectiveness of any Allergan Note Offers and Consent Solicitations or (vii) prepare documentation executed by any pro forma financial information or projections, (B) none of the Allergan BoardSellers, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan NPC or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication such Acquisition Financing shall be subject to the consummation of the Financing will be Closing. NPC hereby consents to the use of its and its Subsidiaries’ logos in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance connection with the requirements of the Panel and the Takeover RulesDebt Financing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (NPC Operating Co B, Inc.)
Financing Cooperation. (a) Until Subject to Section 6.6(a), prior to the earlier of Closing Date, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Company shall use its reasonable best efforts, and shall cause each of its the Company Subsidiaries to to, at Parent’s sole expense, use its reasonable best efforts, and shall use its their respective reasonable best efforts to cause its provide such cooperation in connection with the arrangement, syndication and their respective officers, employees consummation of the Financing as is customary and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be reasonably requested by AbbVie Parent, provided that such requested cooperation does not, in writing that is customary in connection the Company’s reasonable judgment, unreasonably interfere with the arranging, obtaining and syndication ongoing operations of the Financing, including Company or any of the Company Subsidiaries. Such cooperation by the Company and the Company Subsidiaries shall include using its and their reasonable best efforts with respect to:
: (i) participating in subject to Section 6.6, provide all information regarding the Acquired Companies reasonably requested by Parent and assisting with its Financing Sources (or any replacement thereof) for the due diligencepreparation of a customary information memorandum for a syndicated loan or bridge financing and customary offering memorandum for a Rule 144A offering of high yield debt securities, syndication or other marketing including without limitation (a) the Required Information that is Compliant and (b) all financial information of the FinancingCompany and its Subsidiaries derived from the historical books and records of the Company and its Subsidiaries that is required to permit Parent and Merger Sub to prepare the pro forma financial statements required pursuant to paragraph 10 of Exhibit E of the Commitment Letter as in effect as of the date hereof, including using provided that Parent, and not the Company or its Subsidiaries, shall be responsible for the preparation of any pro forma financial statements and pro forma adjustments giving effect to the transactions contemplated hereby, (ii) to the extent reasonably requested by Parent, provide reasonable best efforts and customary assistance, with respect to (A) information regarding the participation by members Acquired Companies, with the preparation of management of Allergan with appropriate seniority in a reasonable number of meetings, materials for rating agency presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectusesprivate placement memoranda and other customary marketing materials and provide reasonable cooperation with the due diligence efforts of the Financing Sources with respect to the Acquired Companies to the extent reasonable and customary, rating agency presentations including delivery to Parent and similar documents required the Financing Sources of such due diligence materials with respect to the Acquired Companies as are reasonably available and reasonably requested by Parent and customarily delivered in connection with the Financing (collectivelysuch presentations, “Marketing Material”) and due diligence sessions related theretomemoranda or marketing materials, (Ciii) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications)by the Financing Sources, or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings in the case of an offering of high yield debt securities as part of the applicable type;
(iii) providing to AbbVie’s legal counsel and its Financing, request the independent auditors such customary documents and other customary information relating of the Company to Allergan and its Subsidiaries as may be reasonably requested in connection cooperate with their delivery of any customary negative assurance opinions and Parent to obtain a customary comfort letters relating to the Financing;
letter, (iv) causing Allergan’s independent auditors assist Parent in obtaining customary payoff letters, Lien terminations and instruments of discharge to provide customary cooperation with allow for the Financing;
(v) obtaining payoff, discharge and termination of all Indebtedness under the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan Company Credit Agreement and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing all other documents reasonably requested by AbbVie Parent or the its Financing Sources relating to the repayment or refinancing in full of any the existing indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date Acquired Companies under the Company Credit Agreement and the release of all related liens and/or guarantees Liens and guarantees, (if anyv) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of provide all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing with respect to the Acquired Companies required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to U.S. bank regulatory authorities under applicable “know your know-your-customer,” and anti-money laundering rules and regulations, including without limitation, limitation the USA PATRIOT ACT. Notwithstanding anything Act, relating to the contrary in this Section 7.9(aAcquired Companies at least three (3) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required Business Days prior to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrumentClosing Date, in each case that would be effective as reasonably requested by Parent at least ten (10) Business Days prior to the Completion Date or would Closing Date, (vi) assist in the preparation, execution and delivery of definitive financing documents, including guarantee and collateral documents and customary closing certificates as may be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b)the Financing and other customary documents as may be reasonably requested by Parent and cooperate to facilitate the pledging of, applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law granting of security interests in and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss obtaining perfection of any such privilege)liens on, (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, collateral in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b)Financing, Allergan shall, and but in no event shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light any of the facts and circumstances at foregoing be effective until as of or after the time delivered))Closing, (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures)cooperate with Parent, and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules.corporate
Appears in 1 contract
Sources: Merger Agreement (WillScot Corp)
Financing Cooperation. (a) Until Prior to the earlier of Closing, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its the Company Subsidiaries to to, use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective directors, officers, employees employees, consultants and advisors and other Representativesadvisors, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie Parent, at Parent’s sole expense, such reasonable cooperation as is necessary and its Subsidiaries such assistance customary and as may be reasonably requested by AbbVie in writing that is customary Parent to assist Parent in connection with any incurrence of indebtedness or issuance of debt securities by Parent or its Affiliates or the arranging, obtaining and syndication of Company or any Company Subsidiary (the “Debt Financing”), including using reasonable best efforts with respect to:
(i) participating in promptly provide Parent and assisting its financing sources and their respective agents with the due diligenceRequired Information; provided, syndication that, for the avoidance of doubt, the Subsidiaries shall not be required to provide, and Parent shall be solely responsible for, (A) any description of all or other marketing any component of the Debt Financing, including using reasonable best efforts with respect any such description to be included in any liquidity or capital resources disclosure or any “description of notes” and information customarily provided by the initial purchasers or (AB) the participation Compensation Disclosure and Analysis required by members Item 402(b) of management of Allergan with appropriate seniority Regulation S-K;
(ii) participate in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions, sessions with prospective financing sources (including direct contact between senior management and the other Representatives of Company and/or the Company Subsidiaries, on the one hand, and the actual and potential financing sources, on the other hand) and sessions with prospective lenders, investors and rating agencies, in each case, at reasonable times and at locations reasonably acceptable to Allergan and upon reasonable notice, mutually agreed;
(Biii) assisting assist with AbbVie’s the preparation of customary materials for registration statements, offering documents, private placement memorandarating agency and investor presentations (including “roadshow” or investor meeting slides), bank information memoranda, prospectusesconfidential information memoranda, rating agency presentations marketing materials and similar documents required in connection with the Financing Debt Financing, including the execution and delivery of customary representation and authorization letters in connection therewith;
(collectively, “Marketing Material”iv) and due diligence sessions related thereto, (C) delivering and consenting to facilitate the inclusion or incorporation in any SEC filing related to the Financing pledging of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings collateral in connection with the Marketing Material (in each caseDebt Financing, as applicableincluding executing and delivering any customary pledge and security documents, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and or other definitive financing documents or other customary information (collectivelycertificates, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie legal opinions or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery by Parent to facilitate the pledging of any customary negative assurance opinions collateral from and customary comfort letters relating to after the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the FinancingClosing;
(v) obtaining the consents of Allergan’s independent auditors provide to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan Parent and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected therebyfinancing sources, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three five (35) Business Days in advance of prior to the Completion Date such Closing Date, all documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie Parent at least ten (10) Business Days in advance of prior to the Completion Closing Date in connection with the Financing that relates to is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationthe PATRIOT Act;
(vi) execute and deliver (or assist Parent in obtaining from legal counsel (including local counsel) to the Company and the Company Subsidiaries and their advisors) customary certificates (including a certificate from the chief financial officer of the Company with respect to solvency), legal opinions or other documents and instruments as may be reasonably requested by Parent, and as are, in each such case, necessary and customary in connection with the Debt Financing;
(vii) take corporate action (subject to the occurrence of the Closing) reasonably necessary to permit the completion of the Debt Financing;
(viii) facilitate the execution and delivery of the definitive documents related to the Debt Financing;
(ix) assist with the payment of existing indebtedness of the Company or any of the Company Subsidiaries on the Closing Date and the release of related Liens and guaranties on the Closing Date (including obtaining customary payoff letters, Lien terminations and other instruments of discharge);
(x) use commercially reasonable efforts to ensure that any syndication efforts in connection with the Debt Financing benefit from the Company’s and the Company Subsidiaries’ existing lending and investment banking relationships; and
(xi) update any Required Information provided to Parent as may be necessary for such Required Information to remain Compliant; provided, however, nothing herein shall require the Company or any of the Company Subsidiaries to (x) provide such cooperation to the extent it would interfere unreasonably with the business or operations of the Company or its Affiliates (including the Company Subsidiaries); and provided, further, that none of the Company, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) Company Subsidiaries or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries their respective directors and officers shall be required to take commit to enter into any Contract, or permit any encumbrance on any asset of the taking of any action Company Subsidiaries, or adopt resolutions approving the agreements, documents and instruments in connection with the Debt Financing or pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay which any commitment or other fee or incur portion of the Debt Financing is obtained, execute any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document document, instrument or instrumentagreement, or agree to any change to or modification of to any existing agreement, certificate, document document, instrument or instrumentagreement, in each case that would be effective prior to the Completion Date Closing or (y) take any action that would reasonably be expected to conflict with or violate the Company’s or any of the Company Subsidiaries’ organizational documents or any Law or Order, or would reasonably be effective if expected to result in the Completion does not occur contravention in any material respect of, or result in a violation or breach in any material respect of, any material agreement to which it is a party. Neither the Company nor any of the Company Subsidiaries nor any of their directors and officers shall be required to take any action that would subject it to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment (except other than reasonable out-of-pocket costs) or incur any other Liability or provide or agree to provide any indemnity, guarantee or pledge in connection with the Debt Financing or any of the foregoing prior to the Closing Date (x) other than to the extent required such Liabilities arise from the breach of this Agreement by Section 7.9(bthe Company), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating . The Company and the Company Subsidiaries hereby consent to the execution thereof that would not conflict reasonable use of their respective logos in connection with applicable Law the arrangement and would be accurate in light consummation of the facts Debt Financing; provided, that such logos are used solely in a manner that is not intended to, or reasonably likely to, harm or disparage the Company or the Company Subsidiaries or their respective marks.
(b) Parent shall promptly, upon request by the Company, pay or reimburse the Company for all reasonable and circumstances at the time delivered documented out-of-pocket costs and expenses (including (i) reasonable outside attorneys’ fees and (zii) fees and expenses of the authorization letter Company’s accounting firms and management representation letters delivered pursuant other advisors engaged to assist in connection with the clause (i)(DDebt Financing) above), (iii) provide access to or disclose information that Allergan incurred by the Company or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege and their respective officers, employees and other Representatives in connection with the Debt Financing, including the cooperation of Allergan the Company or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective officers, employees and other Representatives contemplated by this Section 5.14(b) and the compliance by the Company or any of the Company Subsidiaries or any of their respective Representatives with its obligations under this Section 5.14(b). Parent and Merger Sub, on a joint and several basis, shall indemnify, defend and hold harmless the Company and its Affiliates and their respective officers, employees and other Representatives (collectively, the “Indemnitees”) from and against any and all losses, damages, claims, Liabilities, interest, awards, Judgments, penalties, costs or expenses (including advancing reasonable best efforts to cause any such information to be disclosed attorneys’ fees and expenses in a manner that would not result in advance of the loss final disposition of any such privilege)claim, (ivsuit, proceeding or investigation) deliver suffered or cause its Representatives to deliver incurred directly or indirectly by any legal opinion or negative assurance letter (except, of them in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, arrangement of the Debt Financing and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan any information used in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of therewith, including compliance by the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan Company or any of its the Company Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of their respective Representatives with its Subsidiaries to incur obligations under this Section 5.14(b), other than any personal liability such losses, damages, claims, Liabilities, interest, awards, Judgments, penalties, costs or expenses arising out of (ivx) result in a material violation or breach of, or a default under, any material Contract to which Allergan information provided by the Company or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Company Subsidiaries or any applicable Law. AbbVie of their respective Representatives, (y) the gross negligence or willful misconduct of such Indemnitee or (z) Willful Breach or actual fraud (which shall cause all not include constructive fraud or similar claims) of such Indemnitee, in each case as determined by a court of competent jurisdiction in a final and non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan appealable decision. Parent expressly acknowledges and agrees that the confidentiality undertakings that will Indemnitees shall be obtained in connection with syndication third party beneficiaries of this Section 5.14(b) and the provisions of this Section 5.14(b) shall be enforceable by each Indemnitee and the heirs, executors, estates, personal representatives, successors and assigns of such Persons and shall be binding on all successors and assigns of Parent, Merger Sub, the Company and the Surviving Corporation. This Section 5.14(b) shall survive the consummation of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel Merger and the Takeover RulesEffective Time and any termination of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Amtrust Financial Services, Inc.)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Seller shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its commercially reasonable best effortsefforts to, and shall use its commercially reasonable best efforts to cause its and their respective officersRepresentatives to, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries Buyer, at Buyer’s sole expense, such assistance cooperation in connection with the Financing as may be reasonably requested by AbbVie in writing Buyer that is customary in connection with the arranging, obtaining and syndication arrangement of the Financing, including using reasonable best efforts with respect todebt financings in acquisition transactions; including:
(i) participating assisting in preparation for and assisting with the due diligence, syndication or other marketing of the Financing, including using participation at reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority times and upon reasonable advance notice in a reasonable number of meetingsmeetings and calls, presentationsdrafting sessions, road shows, drafting sessions, rating agency presentations and due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie assisting Buyer and its the Financing Sources in the preparation of (A) bank information memoranda, and similar marketing documents for the Financing, authorizing the distribution of information to prospective lenders and identifying any portion of such information that constitutes material, nonpublic information and (B) customary materials for rating agency presentations;
(iii) as promptly as reasonably practicable and in any event prior to the Closing, furnishing Buyer and the Financing Sources and their respective Representatives with historical financial and other customary pertinent information (collectively, regarding the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries Business as may be reasonably requested in writing by Buyer, provided, however, that Seller shall not be required to provide historical financial information for any period earlier than those reflected in the Audited Financial Statements;
(iv) facilitating the obtaining of customary consents from the independent auditors who prepared the Audited Financial Statements consistent with the requirements of Applicable Law in connection with their delivery the use of the Audited Financial Statements in offering documents or current reports on Form 8-K and other documents to be filed with the SEC;
(v) assisting Buyer in connection with the preparation of pro forma financial information and financial statements to the extent required by Applicable Law, including the 1934 Act and the rules and regulations thereunder or necessary or reasonably required by the Financing Sources to be included in any bank information memorandum or other similar marketing documents; provided, however, that Seller shall not be required to assist Buyer with the preparation of pro forma financial statements reflecting any period earlier than those reflected in the Audited Financial Statements; provided, further, Buyer shall be responsible for timely provision of any post-Closing pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any pro forma financial information requested by Buyer to be delivered by the Business (excluding any information that would customarily be prepared with the cooperation of the Business);
(vi) taking customary negative assurance opinions and customary comfort letters relating corporate actions, subject to the occurrence of the Closing, reasonably requested by Buyer that are necessary to permit the consummation of the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of prior to the Completion Closing Date such all documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing the Business required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, regulations including without limitation, the USA PATRIOT ACTAct to the extent reasonably requested at least ten (10) Business Days prior to the anticipated Closing Date. Notwithstanding anything in this Agreement to the contrary in this Section 7.9(acontrary, (x) or Section 7.9(b) below, (A) none of Allergan neither Seller nor any of its Subsidiaries shall be required to commit to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to that (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie is not contingent upon request by Allergan pursuant to Section 7.9(c))the Closing, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above)Closing, (iii) provide access would encumber any assets of the Business prior to the Closing or disclose information that Allergan (iv) would encumber any assets of Seller or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light other than assets of the facts Business, at any time; and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan Seller nor any of its Subsidiaries shall be required to (1) take or permit the taking of any action that would result in a breach of any contract, violate any Applicable Law or subject it to actual or potential Liability, (i2) bear (or enter into any binding agreement with respect to) any cost or expense (other than as provided in this Agreement), or (3) pay (or enter into any binding agreement with respect to) any commitment or other fee or make any other payment or incur any other Liability or provide or agree to provide any indemnity; and; (y) neither Seller nor any of its Subsidiaries or Representatives shall be required to take any action under this Section 7.14 that would unreasonably interfere unreasonably with the business or operations of Allergan Seller or its Subsidiaries, ; and (iiz) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or neither Seller nor any of its Subsidiaries or Representatives pursuant shall be required to this Section 7.9 take any action that will conflict with or violate their respective organizational documents.
(i) Seller shall deliver or cause to be kept confidential delivered to Buyer an unaudited balance sheet of the Business as of December 31, 2014, and the related unaudited statements of earnings, cash flows and changes in stockholders equity of the Business for the period commencing on October 1, 2014 and ending on December 31, 2014 (the “Business Q1 Interim Financial Statements”) together with the corresponding period for the immediately preceding fiscal year of the Business. The Business Q1 Interim Financial Statements shall be delivered if the Closing occurs on or after February 10, 2015 and shall be delivered as soon as available and in no event later than two (2) days before the Closing Date unless the Closing Date is after February 26, 2015 in which case they shall be delivered no later than seven (7) days before the Closing Date.
(ii) Seller shall deliver or cause to be delivered to Buyer an unaudited balance sheet of the Business as of March 31, 2015, and the related unaudited statements of earnings, cash flows and changes in stockholders equity of the Business for the period commencing on October 1, 2014 and ending on March 31, 2015 (the “Business Q2 Interim Financial Statements”) together with the corresponding period for the immediately preceding fiscal year of the Business. The Business Q2 Interim Financial Statements shall be delivered if the Closing occurs on or after May 13, 2015 and shall be delivered as soon as available and in no event later than two (2) days before the Closing Date.
(iii) The Business Q1 Interim Financial Statements and Business Q2 Interim Financial Statements shall be prepared in accordance with the Confidentiality Agreementapplicable SEC rules and regulations (including Regulation S-X) and GAAP, and shall be reviewed by Seller’s independent registered public accountants in accordance with applicable SEC rules and regulations (including Regulation S-X) and GAAP applicable to interim financial statements; provided, that Allergan acknowledges and agrees provided that the confidentiality undertakings that will Business Q1 Interim Financial Statements do not need to be obtained so reviewed if the Closing occurs on or after May 13, 2015.
(c) Unless previously delivered pursuant to Section 7.14(b)(i), Seller shall deliver or cause to be delivered to Buyer (i) as soon as available and no later than seven (7) days before the Closing Date, the unaudited statements of earnings of the Business for the period commencing on October 1, 2013 and ending December 31, 2013, and (ii) if the Closing has not already occurred, as soon as available and no later than March 16, 2015, an unaudited balance sheet of the Business as of December 31, 2014 and the related unaudited statements of earnings for the period commencing on October 1, 2014 and ending on December 31, 2014, in each case, prepared in accordance with applicable SEC rules and regulations (including Regulation S-X) and GAAP, but not subject to any review by Seller’s independent registered public accountants.
(d) Buyer shall indemnify and hold harmless Seller, its Subsidiaries and their respective Representatives from and against any and all Damages suffered or incurred by them in connection with syndication the arrangement of the Financing will be (including any action taken in a form customary accordance with this Section 7.14) and any information utilized in connection therewith (other than information provided in writing specifically for use in the syndication of acquisition-related debt during a takeover offer period in compliance connection with the requirements Financing by or on behalf of Seller or its Subsidiaries). In addition, Buyer shall, promptly upon request by Seller, reimburse Seller for all reasonable and documented out-of-pocket costs incurred by Seller or its Subsidiaries in connection with the Panel and the Takeover Rulescooperation contemplated by this Section 7.14.
Appears in 1 contract
Sources: Asset and Stock Purchase Agreement (Regal Beloit Corp)
Financing Cooperation. If requested by Purchaser in writing, the Company will provide the following cooperation in connection with the Purchaser obtaining any Permitted Loan: (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant subject to and in accordance with Article 9applicable Law, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its using reasonable best efforts to cause its and their respective officers(i) deposit certificates representing such pledged Securities and/or Warrant Shares in book entry form on the books of The Depository Trust Company at Closing and, employees and advisors and when eligible to do so, remove any restrictive legends or (ii) without limiting the generality of sub-clause (i), if such Securities and/or Warrant Shares are eligible for resale under Rule 144A, depositing such pledged Securities and/or Warrant Shares in book entry form on the books of The Depository Trust Company or other Representativesdepository with customary restrictive legends, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be reasonably (b) if so requested by AbbVie such lender or counterparty in writing that is customary in connection with the arrangingwriting, obtaining and syndication of the Financingas applicable, including using reasonable best efforts with respect to:
(i) participating to re-register the pledged Securities and/or Warrant Shares in and assisting with the due diligence, syndication or other marketing name of the Financingrelevant lender, including using reasonable best efforts with respect counterparty, custodian or similar party to (A) a Permitted Loan, solely as securities intermediary and only to the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable extent the Purchaser or its Affiliates continues to Allergan and upon reasonable noticebeneficially own such pledged Securities and/or Warrant Shares, (Bc) assisting negotiating in good faith to enter into, and entering into, one or more issuer agreements (each, an “Issuer Agreement”) with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required each lender in connection with such transactions in customary form for similar financings and not inconsistent with this Agreement or the Financing Company’s obligations under the Certificate of Designations and applicable Law (collectivelywhich agreement shall include agreements and obligations of the Company relating to procedures and specified time periods for effecting transfers and/or conversions upon foreclosure, “Marketing Material”) agreements to not hinder or delay exercises of remedies on foreclosure and due diligence sessions related theretocertain acknowledgments regarding securities Law status of the pledge arrangements), (Cd) delivering entering into customary triparty agreements with each lender and consenting any applicable Purchaser relating to the inclusion or incorporation in any SEC filing related to the Financing delivery of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each caseSecurities and/or Warrant Shares, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect relevant lender for crediting to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings the relevant collateral accounts upon funding of the loan and, if applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) payment of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie Purchase Price or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case Additional Investment Amount in accordance with the terms of this Agreement, including a right for such lender as a third party beneficiary of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on Company’s obligation under Article II to issue the Completion);
(ix) procuring consents to Securities and/or Warrant Shares, as applicable, upon payment, if applicable, of the reasonable use of all of Allergan’s logos Purchase Price and/or the Additional Investment Amount therefor in connection accordance with the Financing terms of this Agreement and (provided e) such other cooperation and assistance as the Purchaser may reasonably request that such logos are used solely in a manner that is will not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or unreasonably disrupt the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance operation of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACTCompany’s business. Notwithstanding anything to the contrary in this Section 7.9(athe preceding sentence, the Company’s obligation to deliver an Issuer Agreement is conditioned on (x) or Section 7.9(bthe Purchaser delivering to the Company a copy of the loan agreement for the Permitted Loan to which the Issuer Agreement relates (provided, that such loan agreement may be so delivered on a redacted basis to remove sensitive and/or identifying information) below, and (y) the Purchaser certifying to the Company in writing that (A) none the loan agreement with respect to which the Issuer Agreement is being delivered constitutes a Permitted Loan being entered into in accordance with this Agreement, the Purchaser has pledged the Securities and/or Warrant Shares, as applicable, as collateral to the lenders under such Permitted Loan and that the execution of Allergan nor any such Permitted Loan and the terms thereof do not violate the terms of its Subsidiaries shall be required to take this Agreement or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))applicable Law, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (xB) to the extent required by Section 7.9(b)applicable, applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating whether the registration rights under the Investor Rights Agreement are being assigned to the execution thereof lenders under that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above)Permitted Loan, (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any an event of its Subsidiaries shall be required to take or permit default (as defined in the taking of any action that would Issuer Agreement) constitutes the circumstances under which the lenders under the Permitted Loan may foreclose on the Securities and/or Warrant Shares and (iD) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan such Purchaser acknowledges and agrees that the confidentiality undertakings that Company will be obtained in connection with syndication relying on such certifications when entering into the Issuer Agreement. The Purchaser Parties acknowledge and agree that the statements and agreements of the Financing will be Company in a form customary any Issuer Agreement are solely for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements benefit of the Panel applicable lenders party thereto and that in any dispute between the Takeover RulesCompany and any Purchaser Party under this Agreement the applicable Purchaser Party shall not be entitled to use the statements and agreements of the Company in an Issuer Agreement against the Company.
Appears in 1 contract
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9Completion, Allergan Covidien shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, of Covidien and its Subsidiaries to use their reasonable best efforts, to provide to AbbVie Medtronic and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing Medtronic that is customary in connection with the arranging, obtaining and syndication of the Financing, including using reasonable best efforts with respect to:
: (i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to including, but not limited to, (A) the direct participation by members of the senior management of Allergan with appropriate seniority Covidien in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s the preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing prospectuses (collectively, “Marketing Material”) and due diligence sessions related thereto, thereto and (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing delivery of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
Material; (ii) timely furnishing AbbVie Medtronic and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan business, operations, financial condition, projections and prospects regarding Covidien and its Subsidiaries as is may be reasonably requested by AbbVie Medtronic or its Financing Sources and customarily required are customary to assist in preparation of Marketing Material for Financings of the applicable typeMaterial, including all Historical Financial Statements financial statements and financial and other customary information with data in respect to Allergan of Covidien and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 S-1 under the Securities Act, including audit reports of annual financial statements audits thereof to the extent so required (which audit reports audits shall not be subject to any “going concern” qualificationsunqualified), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
; (iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan Covidien and its Subsidiaries as may be reasonably requested in connection with their required to enable the delivery of any customary negative assurance opinions opinion and customary comfort letters relating to the Financing;
; (iv) causing Allergan’s its independent auditors to provide customary cooperation cooperate with the Financing;
(v) obtaining Financing and using reasonable efforts to obtain the consents of Allergan’s its independent auditors to for use of their audit reports on the audited Historical Financial Statements financial statements of Allergan Covidien and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
; (viv) obtaining AllerganCovidien’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
; (viivi) causing ensuring that the Financing to benefit benefits from the existing lender relationships of Allergan Covidien and its Subsidiaries;
; (vii) executing and delivering the definitive documentation in connection with the Financing to which any member of the Covidien Group is a party; (viii) taking such actions that are reasonably requested by Medtronic or its Financing Sources to facilitate the satisfaction on a timely basis of all conditions precedent to obtaining the Financing; (ix) providing documents reasonably requested by AbbVie Medtronic or the Financing Sources relating to the repayment repayment, refinancing or refinancing amendment of any indebtedness for borrowed money or other obligations of Allergan Covidien or any of its Subsidiaries to be repaid repaid, refinanced or refinanced otherwise amended on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness indebtedness; (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ixx) procuring consents to the reasonable use of all of AllerganCovidien’s logos in connection with the Financing Financing; and (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(xxi) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan Covidien and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days Medtronic in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, ; provided that (A) none of Allergan Covidien nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie Medtronic upon request by Allergan pursuant Covidien under Clause 7.10(b)) in connection with the Financing prior to Section 7.9(c))the Completion Date, or (ii) without limitation of the foregoing, execute or deliver any definitive financing documents (except customary secretary and officer certificates or similar customary certificates, which will not be effective prior to the Completion Date, and the authorization letter delivered pursuant to the foregoing clause (i)(C)) prior to the Completion Date or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case instrument that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projectionsDate, (B) none of the Allergan Board, Covidien Board and officers of Allergan, or Covidien and the directors and officers of the Subsidiaries of Allergan Covidien shall not be required prior to the Completion Date to (i) adopt resolutions or consents approving the agreements, documents or and instruments pursuant to which the Financing is obtained or (ii) take any Allergan Note Offers and Consent Solicitations is consummated (except corporate actions to permit the execution and delivery consummation of any applicable Allergan Supplemental Indentures)the Financing, and (C) neither Allergan nor any of its Subsidiaries nothing in this Clause 7.10(a) shall be required require cooperation to take or permit the taking of any action extent that it would (i) interfere unreasonably with the business or operations of Allergan Covidien or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie Medtronic shall cause all non-public or other confidential information provided by or on behalf of Allergan Covidien or any of its Subsidiaries or Representatives pursuant to this Section 7.9 Clause 7.10 to be kept confidential in accordance with the Confidentiality Agreement; provided.
(b) Medtronic shall, that Allergan acknowledges promptly upon request by Covidien, reimburse Covidien for all reasonable and agrees that the confidentiality undertakings that will be obtained documented third-party out-of-pocket costs and expenses (including attorneys’ fees) incurred by Covidien in connection with syndication of such cooperation and shall indemnify and hold harmless Covidien, its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, expenses (including attorneys’ fees), interest, judgments and penalties suffered or incurred by them in connection with this Clause 7.10 (other than to the Financing will be extent resulting from (x) information provided by Covidien or its Subsidiaries in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance accordance with the requirements of terms hereof to the Panel and the Takeover Rulesextent such information, as provided, is inaccurate or misleading or (y) Covidien’s or its Subsidiaries’ or Representatives’ willful misconduct or gross negligence).
Appears in 1 contract
Sources: Transaction Agreement (Covidien PLC)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsUlysses Holdings shall, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its their reasonable best efforts to, and to cause its Affiliates and their respective officers, employees and advisors and other Representatives, Representatives (including legal and accounting advisors) to, to use their reasonable best effortscooperate in connection with the arrangement of credit facilities and non-convertible debt securities financing that Tenet may seek in connection with the transactions contemplated hereby (the “Financing”), to provide to AbbVie and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary in connection with the arranging, obtaining and syndication of the Financing, including Tenet. Such cooperation shall include using reasonable best efforts with respect to:
in: (i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of making senior management of Allergan with appropriate seniority Ulysses Holdings and its Subsidiaries available to participate in a reasonable number of meetingsmeetings with prospective lenders and purchasers of the Financing, presentations, road shows, drafting sessions, meetings with rating agencies and due diligence sessions and drafting sessions with prospective lendersrespect to the Financing, investors and rating agencies, in each case at times and at locations reasonably acceptable to Allergan and upon reasonable notice, be mutually agreed; (Bii) assisting with AbbVie’s the preparation of customary materials regarding Ulysses Holdings and its Subsidiaries for registration statementsrating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations registration statements and similar documents regarding Ulysses Holdings and its Subsidiaries required in connection with the Financing and providing customary authorization letters with respect to such materials regarding Ulysses Holdings and its Subsidiaries; (collectively, “Marketing Material”iii) and due diligence sessions related thereto, furnishing Tenet with the Required Information; (Civ) delivering and consenting subject to the inclusion or incorporation proviso in any SEC filing related the definition of “Required Information,” providing Tenet information regarding Ulysses Holdings and its Subsidiaries reasonably requested by Tenet which is necessary to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim enable Tenet to prepare pro forma financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type and form that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie for a registered public offering; and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(ivv) causing AllerganUlysses Public Filer’s independent auditors to provide customary cooperation with (for financings similar to the Financing;
(v) obtaining the “comfort letters” and consents of Allergan’s independent auditors to use their of audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance on customary terms and consistent with their customary practice and procedures. Notwithstanding the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan foregoing or any other provision of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) belowAgreement, (A) none of Allergan the transactions contemplated by this Agreement, including the consummation thereof, nor the occurrence of the Closing shall be subject in any respect to the consummation of the Financing, (B) no cooperation with the Financing shall unreasonably interfere, as determined by Ulysses Holdings in good faith, with the ongoing business or operations of the Ulysses Holdings and its Subsidiaries and none of Ulysses Holdings or any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) that unreasonably interferes with its ongoing business or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), operations; and (C) neither Allergan nor none of Ulysses Holdings or any of its Subsidiaries shall be required to take any action, commit to take any action or permit enter into any agreement, document or instrument, in each case, that (1) would encumber or require the taking delivery or pledge of any action that would (i) interfere unreasonably with the business or operations assets of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan Ulysses Holdings or any of its Subsidiaries (unless waived by AbbVie)prior to the Closing, (iii2) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) would result in a material violation of Law or breach of, of any Contract or a default under, any material Contract to which Allergan or subject any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan Ulysses Holdings or any of its Subsidiaries or their respective Representatives pursuant to this Section 7.9 to be kept confidential any actual or potential liability or loss of any privilege, or (3) would result in accordance with the Confidentiality Agreement; providedany liability or any obligation under any definitive financing agreement or any related document, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained instrument or certificate or any other liability, potential liability or obligation in connection with syndication the Financing prior to the Closing.
(b) Tenet shall use and shall cause its Affiliates to use their reasonable best efforts to cause the Financing to be consummated including (i) negotiating and entering into definitive agreements with respect to the Financing (the “Definitive Financing Agreements”), (ii) consummating the Financing on or prior to the Closing, (iii) paying in a timely manner any commitment fees or other amounts that are or become due and payable under or with respect to the Financing or any of the Definitive Financing Agreements, (iv) fully enforcing the obligations of the parties to the Financing and the Definitive Financing Agreements and Tenet’s rights under or with respect to the Financing and the Definitive Financing Agreements and (v) otherwise taking or causing to be taken all actions and to do or causing to be done all things reasonably necessary to arrange and obtain the Financing. Tenet shall keep Ulysses Holdings informed on a current basis and in reasonable detail of the status of its efforts to arrange the Financing, and shall provide Ulysses Holdings, upon reasonable request, with copies of any information and documentation regarding the Financing as shall be reasonably necessary to allow Ulysses Holdings to monitor the progress of the Financing including providing Ulysses Holdings with prompt notice of (A) any material breach or default by any party to the Financing or the Definitive Financing Agreements, (B) the receipt of any written communication with respect to any actual or potential material breach or default by any party to the Financing or the Definitive Financing Agreements or any termination of the Financing or the Definitive Financing Agreements or (C) any dispute or disagreement between or among the parties to any of the Financing or the Definitive Financing Agreements with respect to the obligation to fund the Financing or the amount of the Financing to be funded on the Closing Date.
(c) Ulysses Holdings will use its reasonable best efforts to update Required Information as may be necessary such that the Required Information does not, to the knowledge of Ulysses Holdings, contain any untrue statement of material fact or omit to state any material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not materially misleading (after giving effect to all supplements and updates thereto from time to time).
(d) As soon as reasonably practicable after receipt of a form customary written request by Tenet to do so, Ulysses Holdings shall (i) prepare notices of redemption and satisfaction and discharge for the Ulysses Senior Notes pursuant to the applicable provisions of the Ulysses Senior Notes Indenture, (ii) use its reasonable best efforts to cause the Trustee (as defined in the syndication of acquisition-related debt during a takeover offer period in compliance Ulysses Senior Notes Indenture) to agree to proceed with the requirements redemption and satisfaction and discharge of the Panel Ulysses Senior Notes on notice of at least 35 days (or such shorter period as each such Trustee may agree to) before the redemption date, which notice may be subject to the consummation of the Closing, and use reasonable best efforts to cause the Takeover RulesTrustee to provide the notice of redemption and satisfaction and discharge to the holders of the Ulysses Senior Notes following the Closing on the Closing Date, (iii) provide Tenet the reasonable opportunity to review and comment on each of the foregoing notices reasonably in advance of their delivery and (iv) use its reasonable best efforts to take all other actions and prepare and deliver all other documents (including any officer’s certificates and legal opinions) as may be required under the Ulysses Senior Notes Indenture to issue an irrevocable notice of redemption and satisfaction and discharge following the Closing on the Closing Date for such Ulysses Senior Notes (subject to the irrevocable deposit with the Trustee on the Closing Date of funds sufficient to pay in full the outstanding aggregate principal amount of, accrued and unpaid interest through the redemption date on, and applicable premiums related to, the Ulysses Senior Notes, as arranged by Tenet) providing for the redemption and satisfaction and discharge of all of the outstanding aggregate principal amount of the Ulysses Senior Notes (together with all accrued and unpaid interest and applicable premiums related to the Ulysses Senior Notes) pursuant to the requisite provisions of the Ulysses Senior Notes Indenture.
Appears in 1 contract
Sources: Contribution and Purchase Agreement (United Surgical Partners International Inc)
Financing Cooperation. (a) Until From the earlier of date hereof until the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9Closing, Allergan Descartes shall use its reasonable best effortsprovide, and shall cause each of its Subsidiaries to use its reasonable best effortsprovide, and shall use its reasonable best efforts to cause its and each of their respective directors, officers, employees and advisors employees, consultants, advisors, counsel, accountants, auditors and other RepresentativesRepresentatives to provide, at Fermat’s sole cost and expense, all cooperation reasonably requested by Fermat to assist Fermat and its Affiliates with respect to the arrangement of any third-party debt financing for the purpose of funding all of the Fermat Group’s payment obligations under this Agreement and the payment of fees and expenses incurred in connection therewith or pursuant hereto (collectively, the “Financing”), including legal (i) reasonably assisting in the preparation for, and accounting advisorscausing members of senior management of the Ag Business to participate in, to use their a reasonable best effortsnumber of lender marketing meetings, to provide to AbbVie road shows, presentations, drafting sessions, and calls and a reasonable number of other due diligence sessions with prospective lenders and sessions with ratings agencies, in each case, in connection with the Financing and with reasonable advance notice and during reasonable times, and otherwise providing cooperation that is customary and reasonable in connection with the marketing efforts of Fermat and the Financing Sources, (ii) (x) providing all information regarding Descartes and any of its Subsidiaries which conduct the Ag Business and the Ag Business as is customary or reasonably necessary for the completion of the Financing to the extent reasonably requested by Fermat or the Financing Sources, including under applicable “know your customer”, anti-money laundering rules and regulations and the USA Patriot Act of 2001, in each case, at least four (4) days prior to the Closing Date if requested at least nine (9) days prior to the Closing Date and, (y) subject to the first proviso of this paragraph set forth below, providing all pertinent financial information regarding the Ag Business that is in the possession of or reasonably obtainable by Descartes or such Subsidiaries as is required, or reasonably requested by a Financing Source, in connection with, the completion of the Financing to the extent requested by Fermat or the Financing Sources, (iii) providing reasonable assistance to Fermat and the Financing Sources in the preparation of customary lender and investor presentations, rating agency presentations, bank information memoranda and similar customary marketing material and similar documents for the Financing, as well as providing reasonable assistance to Fermat in connection with its preparation of financial projections, (iv) providing customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders, (v) taking all reasonable and customary corporate action, limited liability company action or other organizational action, as applicable, subject to the occurrence of the Closing, necessary to permit and/or authorize the consummation of the Financing, (vi) reasonably facilitating (through providing and executing customary agreements, documents or certificates) the pledge and perfection of liens and security interests in connection with the Financing, as may be reasonably requested by AbbVie in writing Fermat (provided that no obligation under any such document or agreement will take effect until the Closing), and (vii) providing all cooperation that is customary in connection with the arranging, obtaining and syndication of the Financing, including using reasonable best efforts with respect reasonably necessary to:
(ib) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan Descartes and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements hereby consent to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings use of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used logos in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (; provided that such logos are used solely in a manner that is not intended to and is not or reasonably likely to (i) harm or disparage Allergan Descartes or its Subsidiaries or the reputation their reputation, goodwill or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))marks, (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan otherwise materially adversely affect Descartes or any of its Subsidiaries or Representatives (iii) in any manner, violate any existing contractual obligations of Descartes or any of its Subsidiaries.
(c) Notwithstanding any other provision set forth herein or in any other agreement between Descartes and Fermat (or their respective Affiliates), Descartes and its Subsidiaries agree that Fermat and its Affiliates may share any confidential information with respect to Descartes and its Subsidiaries which conduct the Ag Business and the Ag Business with any Financing Sources, and that Fermat and their respective Affiliates may share such information with potential Financing Sources in connection with any marketing efforts with respect to the Financing; provided, that the recipients of such information and any other confidential information contemplated to be provided by the Descartes and its Subsidiaries which conduct the Ag Business or any of their respective Affiliates pursuant to this Section 7.9 5.25, agree to be kept confidential customary confidentiality arrangements, including “click through” confidentiality agreements and confidentiality provisions contained in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges customary bank books and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesoffering memoranda.
Appears in 1 contract
Sources: MSW Transaction Agreement (FMC Corp)
Financing Cooperation. (ai) Until Prior to the earlier of Closing and subject to the Completion limitations in this Agreement, Sellers and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its their respective Subsidiaries to to, use its reasonable best efforts, and shall use its reasonable best efforts (at Buyer’s sole cost and expense) to cause its the appropriate officers and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie of the Company and its Subsidiaries to, provide such assistance cooperation as may be is necessary, customary and reasonably requested by AbbVie the Buyer Entities upon reasonable prior notice to assist the Buyer Entities solely in writing that connection with causing the conditions to the Financing to be satisfied or as is customary otherwise reasonably requested by the Buyer Entities in connection with the arrangingBuyer Entities’ efforts to obtain the Financing (provided that any such requests are timely made so as not to delay the Closing beyond the date on which it would otherwise occur), obtaining and syndication of the Financing, including using reasonable best efforts with respect to:
which cooperation may include (i1) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) meetings and due diligence sessions related theretowith providers or potential providers of the Financing (which shall be limited to teleconference or virtual meeting platforms) during normal business hours and at mutually agreed locations and times (2) reasonably assisting the Buyer Entities in the preparation of materials reasonably and customarily requested to be used in connection with obtaining the Financing, (C) delivering and consenting in each case, solely with respect to the inclusion or incorporation in any SEC filing information related to the Financing of Company (to the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”extent related to its business) and its Subsidiaries, (D3) delivering customary authorization lettersproviding reasonably promptly to the Buyer Entities such financial and other pertinent information regarding the Company and its Subsidiaries that is readily available or within the Company’s possession, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicableis required to satisfy the conditions set forth in paragraph 6 of Exhibit C to the Debt Commitment Letter (the “Required Information”), subject to (4) executing and delivering customary confidentiality provisions and disclaimers);
authorization letters (ii) timely furnishing AbbVie provided that, such customary authorization letters, or the bank information memoranda in which such letters are included, shall include language that exculpates the Company, each of its Subsidiaries and its Financing Sources with historical financial Representatives and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to Affiliates from any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used liability in connection with the Financing;
(viunauthorized use or misuse by the recipients thereof of the information set forth in any such bank information memoranda or similar memoranda or report distributed in connection therewith) obtaining Allergan’s independent auditors’ and other reasonable and customary comfort certificates, management representation letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested other documentation required by AbbVie or the Financing Sources relating and the definitive documentation related to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtednessFinancing, in each case in accordance (other than with respect to such authorization letters), subject to the terms occurrence of the definitive documents governing such indebtedness Closing and (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix5) procuring consents delivering information and documentation related to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan Company and its Subsidiaries as is required and reasonably requested in writing by AbbVie the Financing Sources at least ten (10) Business Days in advance of prior to the Completion Closing Date in connection with the Financing that relates respect to compliance under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Act.
(ii) Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) belowAgreement, (A) none of Allergan nor Sellers, the Company, their respective Subsidiaries or any officer, employee or Representative of any of its Subsidiaries the foregoing, shall be required to take (1) provide or permit prepare, and the taking Buyer Entities shall be solely responsible for, the preparation of pro forma financial information, including pro forma costs savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any action pursuant to this Section 7.9(a) or Section 7.9(b) below to pro forma financing information, (i2) pay any commitment fee, (3) provide Regulation S-X compliant financial statements or any financial data other than the Required Information, (4) approve any document or other fee matter related to the Financing or incur or reimburse any costs or expenses or incur any other liability or obligation of any kind or give any indemnities in connection with the Financing (other than third-party costs unless given by the Company or any of its continuing officers at or after the Closing), (5) enter into, approve or perform any agreement or commitment in connection with the Financing or modify any agreement or commitment or provide any certification (in each case, unless by the Company or any of its continuing officers and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to effective only at or after the Closing, excluding any customary authorization letters described in Section 7.9(c5.12(b)(i)(4)), (ii6) execute provide any legal opinion or deliver any definitive financing documents reliance letters or any other agreement, certificate, document comfort letter or instrument, or agree to any change to or modification opinion of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indenturesof its Representatives, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii7) provide access to or disclose any information to the Buyer Entities or their Representatives to the extent such disclosure would violate the attorney-client privilege, attorney work product protections or similar protections or violate any applicable Law or contract, (8) take any action that Allergan could (A) unreasonably interfere with the day-to-day operations of the Company or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement, (C) result in any director, officer, employee or other Representative of the Company, the Sellers or any of their respective Subsidiaries incurring any personal liability, (D) conflict with the Organizational Documents of the Company or any of its Subsidiaries (unless waived by AbbVie)or any Law, (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (ivE) result in a material the contravention, violation or breach of, or a default under, any material Contract to which Allergan contract, (9) prepare separate financial statements for the Company or any of its Subsidiaries is a partyor change any fiscal period (except with regard to the Audited Financial Statements), or (10) adopt any resolutions, execute any consents or otherwise take any corporate or similar action (in each case, unless by the Company or any of its continuing directors or officers and effective only at or after the Closing). Any use of the Company’s and its Subsidiaries’ logos in connection with the Financing shall require the Company’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed).
(iii) The Buyer Entities expressly acknowledge and agrees that neither the availability, the Organizational Documents terms nor the obtaining of Allergan or its Subsidiaries the Financing or any applicable Lawother financing is in any manner a condition to the Closing or the obligations of the Buyer Entities to consummate the transactions contemplated hereby. AbbVie Sellers, the Company and each of their respective Subsidiaries will be deemed to be in compliance with this Section 5.12(b), and the Buyer Entities shall cause all not allege that any of Sellers, the Company or any of their respective Subsidiaries is or has not been in compliance with this Section 5.12(b), unless the Buyer Entities provide prompt written notice of the alleged failure to comply specifying in reasonable detail specific steps to cure such alleged failure in a commercially reasonable and practical manner consistent with this Section 5.12(b), which alleged failure to comply has not been cured within ten (10) Business Days from receipt of such written notice.
(iv) Neither Sellers, the Company nor any of their respective Affiliates or Subsidiaries (or any of their respective Representatives) shall have any liability to the Buyer Entities in respect of any financial statements, other financial information or data or other information provided pursuant to this Section 5.12(b), in each case, other than, with respect to the Financial Statements, liability for Fraud or the exercise of the Buyer Entities rights under Section 6.2(a) or Section 7.1(c), as and if applicable. None of Sellers, the Company or any of their respective Affiliates or Subsidiaries (or any of their respective Representatives) shall have any liability or incur any losses, damages or penalties with respect to the Financing or any marketing materials, presentations or disclosure documents in connection therewith in the event the Closing does not occur. All non-public or other confidential information provided by or on behalf of Allergan Sellers or the Company to the Buyer Entities or its Affiliates or any of its Subsidiaries or their respective Representatives pursuant to this Section 7.9 to 5.12(b) shall be kept confidential in accordance with the terms of the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Evolent Health, Inc.)
Financing Cooperation. (a) Until Prior to the earlier of Effective Time, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best effortsCompany shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and shall use its reasonable best efforts to cause the Representatives of the Company and each of its and their respective officersSubsidiaries to, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries Parent such assistance as may be cooperation reasonably requested by AbbVie Parent to assist Parent in writing that causing the conditions in the Debt Financing Letters to be satisfied and such cooperation as is customary otherwise necessary or reasonably requested by Parent in connection with the arrangingDebt Financing, obtaining the Debt Payoff, the Debt Tender Offer, the Consent Solicitation and/or any defeasance or satisfaction and syndication discharge of the Financing2014 Notes in accordance with their terms (for the avoidance of doubt, any references to Debt Financing or Financing in this Section 5.13 shall include the issuance of the senior notes contemplated by the Debt Commitment Letter), including using reasonable best efforts with respect tocooperation that consists of:
(i) participating in a customary and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting due diligence sessions, due diligence drafting sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, ;
(Bii) assisting with AbbVie’s the preparation of a customary materials for registration statements, offering documents, private placement memorandarating agency presentation, bank information memoranda, prospectuses, rating agency presentations and similar documents high-yield offering prospectuses or memoranda required in connection with the Financing Financing, provided, that any such bank information memoranda or high-yield offering prospectuses or memoranda shall contain disclosure and financial statements reflecting the Surviving Corporation and/or its Subsidiaries as the obligor;
(collectivelyiii) executing and delivering any pledge and security documents, “Marketing Material”) supplemental indenture, currency or interest hedging arrangements, other definitive financing documents, a certificate of the chief financial officer of the Company with respect to solvency of the Company and due diligence sessions related thereto, (C) delivering and consenting its Subsidiaries on a consolidated basis to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings extent required in connection with the Marketing Material Financing, and other certificates or documents and back-up therefor and for legal opinions as may be reasonably requested by Parent (including consents of accountants for use of their reports in each case, as applicable, subject any materials relating to customary confidentiality provisions the Debt Financing) and disclaimers)otherwise reasonably facilitating the pledging of collateral;
(iiiv) timely furnishing AbbVie Parent and its Financing Sources sources as promptly as practicable with historical (A) unaudited consolidated balance sheets and related statements of income and cash flows of the Company for each fiscal quarter ended after the close of its most recent fiscal year and at least 40 days prior to the Closing Date and (B) all financial statements, pro forma financial information, financial data, audit reports and other customary information (collectively, regarding the “Financing Information”) with respect to Allergan Company and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K promulgated under the Securities Act if for a registered public offering of non-convertible debt securities of the Financing were incurred by AbbVie Company (including for Parent’s preparation of pro forma financial statements), to the extent the same is of the type and registered on Form S-3 form customarily included in an offering memorandum for private placements of non-convertible high-yield bonds under Rule 144A promulgated under the Securities ActAct (which, including audit reports for the avoidance of annual doubt, shall not include any financial statements to the extent so required (which audit reports shall not be subject to by Regulation S-X Rule 3-10 or 3-16 or any “going concern” qualificationsCompensation, Discussion and Analysis required by Regulation S-K Item 402(b)), or (B) reasonably otherwise necessary to permit AbbVie to prepare pro forma financial statements receive from the Company’s independent accountants customary for Financings of the applicable type;
“comfort” (iiiincluding “negative assurance” comfort) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating respect to the Financing;
financial information to be included in such offering memorandum and which, with respect to any interim financial statements, shall have been reviewed by the Company’s independent accountants as provided in SAS 100 (all such information in this clause (iv) causing Allergan’s independent auditors to provide customary cooperation with ), the Financing“Required Information”);
(v) obtaining using reasonable best efforts to cooperate with Parent and Parent’s efforts to obtain customary and reasonable accountants’ comfort letters, corporate and facilities ratings, consents, 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 Company Real Property) as reasonably requested by Parent;
(vi) taking all actions reasonably necessary to (x) permit the consents prospective lenders involved in the Financing to evaluate the Company and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of Allerganestablishing collateral arrangements to the extent customary and reasonable and (y) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing;
(vii) entering into one or more credit or other agreements on terms satisfactory to Parent in connection with the Debt Financing immediately prior to the Effective Time to the extent direct borrowings or debt incurrences by the Company or any Company Subsidiary are contemplated by the Debt Commitment Letter;
(viii) at Company’s independent auditors option, taking or appointing a Representative of Parent to use their audit reports take all corporate actions, subject to the concurrent occurrence of the Closing, reasonably requested by Parent to permit the consummation of the Debt Financing; and
(ix) requesting 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 audited Historical Financial Statements Closing Date of Allergan all indebtedness and Liens under the Credit Agreement (the “Debt Payoff”); provided that (v) nothing herein shall require such cooperation to references the extent it would require the Company to waive or amend any terms of this Agreement or agree to pay any fees or reimburse any expenses prior to the Effective Time for which it has not received prior reimbursement by or on behalf of Parent, or give any indemnities that are effective prior to the Effective Time, (w) nothing herein shall require such independent auditors cooperation from the Company or its Subsidiaries to the extent it would unreasonably interfere with the ongoing operations of the Company and its Subsidiaries, (x) no action, liability or obligation of the Company or any of its Subsidiaries or any of their respective Representatives under any certificate, agreement, arrangement, document or instrument relating to the Debt Financing shall be effective until the Effective Time, (y) the Company shall not be deemed in breach of its obligations pursuant to clause (iii) of this Section 5.13(a) for failure to deliver the certificate with respect to solvency referred to in such clause (iii) solely to the extent that (A) the failure to deliver such certificate resulted from (I) any actual or anticipated principal amount of indebtedness in respect of the Debt Financing in excess of $785,000,000 (including availability under unfunded commitments), (II) any actual or anticipated amount of original issue discount or upfront fees in lieu thereof applied to the Debt Financing being in excess of the maximum amount of original issue discount or upfront fees in lieu thereof that may be imposed pursuant to the terms of the Debt Commitment Letter and Fee Letter (in each case as experts in effect on the date hereof), (III) any Marketing Material actual or anticipated aggregate fees payable in respect of the Debt Financing being in excess of the maximum aggregate fees payable in respect of the Debt Financing pursuant to the Debt Commitment Letter and registration Fee Letter (in each case as in effect on the date hereof), (IV) any actual or anticipated weighted-average cost applicable to the Debt Financing being in excess of the maximum weighted-average costs applicable to the Debt Financing pursuant to the Debt Commitment Letter and Fee Letter (in each case as in effect on the date hereof), or (V) the amount and timing of debt service payments in respect of the Debt Financing (including, as applicable, any Senior Notes (as defined in the Debt Commitment Letter)) and any other indebtedness first incurred by the Company or any of its Subsidiaries on the Closing Date at the written direction of Parent or Merger Sub or as a result of the Merger, or at any time after the Effective Time, or able to be incurred under facilities or other financing arrangements first entered into (including through assumption or guarantee) by the Company or any of its Subsidiaries on the Closing Date at the written direction of Parent or Merger Sub or as a result of the Merger, or at any time after the Effective Time, being materially less favorable to the Company and its Subsidiaries than those applicable to the Debt Financing as set forth in the Debt Commitment Letter and Fee Letter (in each case as in effect on the date hereof) and (B) any of the foregoing described in clauses (A)(I) - (A)(IV) resulted from an amendment to or modification, waiver or replacement of the Debt Commitment Letter or Fee Letter (in each case as in effect on the date hereof) (with it being understood and agreed, for the avoidance of doubt, that no exercise of any or all flex terms contained in the Debt Commitment Letter or Fee Letter (in each case as in effect on the date hereof) shall be considered an amendment, modification, waiver or replacement for purposes of this clause (y)) and (z) any bank information memoranda and high-yield offering prospectuses or memoranda required in relation to the Debt Financing (1) need not be issued by the Company or any of its Subsidiaries and (2) shall contain disclosure and financial statements reflecting the Surviving Corporation and/or its Subsidiaries as the obligor.
(b) Parent shall promptly, upon request by the Company, reimburse the Company for all of its documented reasonable out-of-pocket costs and related government filings filed expenses (including reasonable attorneys’ fees) incurred by the Company or used any of its Subsidiaries in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 5.13.
(c) The Company, its Affiliates and their respective officers, advisors and Representatives shall be indemnified and held harmless by Parent for and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of the Debt Financing, the Debt Payoff, the Debt Tender Offer, the Consent Solicitation, and/or the provision of information utilized in connection therewith (other than information provided in writing specifically for such use by or on behalf the Company or any of its Affiliates) to the fullest extent permitted by applicable Law.
(d) The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (; provided that such logos are used solely in a manner that is not intended to and is not or reasonably likely to harm or disparage Allergan the Company or any of its Subsidiaries or the reputation or goodwill of Allergan the Company or any of its Subsidiaries); and.
(xe) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all All non-public or other confidential information provided by or on behalf of Allergan the Company or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to Agreement shall be kept confidential in accordance with the Confidentiality Agreement; providedprovided that Parent and Merger Sub shall be permitted to disclose such information to potential sources of capital, that Allergan acknowledges rating agencies, prospective lenders and agrees that the confidentiality undertakings that will be obtained investors and their respective Representatives in connection with syndication the Financing so long as such Persons agree to be bound by the Confidentiality Agreement or other customary confidentiality undertaking reasonably satisfactory to the Company and of which the Company shall be a beneficiary.
(f) It is acknowledged and agreed that the Debt Financing may include Senior Notes (as defined in the Debt Commitment Letter) in lieu of the Financing will be in a form customary for use Senior Bridge Facility (as defined in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements Debt Commitment Letter) and, as applicable, such Senior Notes shall be deemed part of the Panel Debt Financing and Financing for all purposes of this Agreement, including that the Takeover Rulesfunded principal amount of such Senior Notes shall (without limitation to other amounts to be included in such computation) be included in the computation of Consolidated Debt for Borrowed Money pursuant to clause (i) of the definition thereof for all purposes of this Agreement.
(g) Subject to the terms and conditions hereof, Parent shall cause the indebtedness under the Credit Agreement to be satisfied and discharged at the Closing except as may otherwise be agreed by any lender thereto.
Appears in 1 contract
Sources: Merger Agreement (BWAY Holding CO)
Financing Cooperation. (a) Until Prior to the Closing or the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9Section 9.02, Allergan shall the Company agrees to use its reasonable best effortsefforts to provide, and the Company shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officersprovide, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries Purchaser such assistance as may be is reasonably requested by AbbVie in writing that is customary Purchaser or the Debt Financing Sources in connection with the arranging, obtaining and syndication of the Debt Financing or any Permanent Financing, including using reasonable best efforts with respect but not limited to:
: (i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect promptly furnishing to Purchaser (A) all financial information set forth in section (ii)(b) of Exhibit B to the participation Debt Commitment Letter, and (B) such other customary financial information as reasonably requested by members Purchaser to enable Parent to prepare pro forma financial statements, in each case, giving effect to the Merger including the Debt Financing or any replacement Permanent Financing (it being agreed that the preparation of any pro forma financial statements will not be the responsibility of the Company); (ii) causing the Company’s and its Subsidiaries’ management of Allergan teams, with appropriate seniority and expertise, at reasonable times to be mutually agreed between the Company and Purchaser and upon reasonable prior notice, to participate in a reasonable number of meetings, presentations, road shows, drafting sessionsconference calls, due diligence sessions and sessions similar presentations (in each case, which may be virtual) with prospective lenders, investors or requested by the Debt Financing Sources and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, ; (Biii)
(A) assisting with AbbVie’s the preparation of of, and providing customary materials information necessary for registration statementsthe preparation of, offering documents, private placement memorandacustomary rating agency presentations, bank information memoranda, prospectuseslender presentations, rating agency presentations bank books, a “road show” presentation, a preliminary and similar documents final offering memorandum customarily used for a private placement of debt securities or equity securities pursuant to Rule 144A, a registration statement, prospectus and prospectus supplement customarily used for a registered sale of debt securities or equity securities, and other customary marketing and syndication materials required or reasonably requested by the Debt Financing Sources in connection with the Debt Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with any Permanent Financing; provided that any such customary marketing and syndication materials shall contain disclosure reflecting Purchaser or Parent as the Marketing Material obligor; (in each caseB) reasonably promptly furnishing due diligence information of the Company and its Subsidiaries, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectivelythat is readily available, within the “Financing Information”) with respect to Allergan control of the Company and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of the Debt Financing or in connection with any Permanent Financing; and (C) executing and delivering customary negative assurance opinions authorization and customary comfort representation letters relating to the Financing;
Debt Financing or Permanent Financing (including with respect to the absence of material non-public information in the public side version of documents distributed to prospective financing sources); (iv) causing Allergan’s independent auditors providing to provide customary cooperation with Purchaser a fully executed payoff letter reasonably satisfactory to Purchaser providing for the Financing;
(v) obtaining the consents repayment in full of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities all Indebtedness of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan Company and its Subsidiaries;
Subsidiaries under the Credit Facility (viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to “Debt Payoff Letter”), the repayment or refinancing termination of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date applicable debt commitments and all guarantees thereof and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters all Liens in respect thereof; and (v) furnishing Purchaser promptly, and in any event no later than four Business Days prior to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtednessClosing Date, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitationthe Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended, that has been reasonably requested by Purchaser in writing, at least nine Business Days prior to the Closing Date. Subject to Purchaser’s indemnification obligations under this Section 6.11, the USA PATRIOT ACT. Notwithstanding anything Company hereby consents to the contrary use of the Company’s and its Subsidiaries’ logos in connection with the Debt Financing or any Permanent Financing; provided, that, Purchaser shall ensure that such logos are not used in a manner that is intended to or reasonably likely to harm or disparage the Company and its Subsidiaries or the reputation or goodwill of the Company and its Subsidiaries and their respective marks.
(b) Purchaser shall: (i) on the Closing Date, or upon the earlier termination of this Agreement in accordance with Section 9.02, reimburse the Company and any of its Related Parties for all reasonable documented out-of-pocket costs and expenses, including attorneys’ fees, incurred by the Company and any of its Related Parties in complying with this Section 7.9(a6.11; and (ii) indemnify and hold harmless the Company and its Related Parties from and against all claims, losses, damages, injuries, liabilities, judgments, awards, penalties, fines, Taxes, costs, expenses, including documented out-of-pocket attorneys’ fees, or Section 7.9(b) below, settlement payments suffered or incurred by any of them to the extent resulting from (A) the Company providing the cooperation contemplated by this Section 6.11, and (B) any misuse of the logos or marks of the Company or its Subsidiaries.
(c) Notwithstanding anything in this Agreement to the contrary, including this Section 6.11, none of Allergan nor the Company or any of its Subsidiaries shall or Related Parties shall: be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to to: (i) obtain or deliver any legal opinions of internal or external legal counsel; (ii) pay any commitment or other fee or reimburse any expenses in connection with the Debt Financing prior to the Closing; (iii) incur any liability or give any indemnity in connection with the Debt Financing prior to the Closing; (iv) take any action that would require any director, officer or employee of the Company or its Subsidiaries to execute, or be required to enter into, any document, agreement, certificate or instrument (other than third-party costs with respect to any authorization and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to representation letter described in Section 7.9(c)6.11(a), (iias may be requested by the Company’s independent auditor or the Debt Payoff Letter) execute in connection with the Debt Financing except as may be effective at or deliver any definitive financing documents or any other agreement, certificate, document or instrumentafter, or agree to any change to conditioned upon, the Closing or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant terminate without liability to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan Company or any of its Subsidiaries reasonably determines Affiliates; (v) take any action in connection with the Debt Financing that (A) would jeopardize any attorney-client privilege unreasonably interfere with the ongoing business or operation of Allergan the Company or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver Related Parties or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of cause significant competitive harm to the Allergan Board, officers of Allergan, Company or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit if the taking of any action that would Merger is not consummated; (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iiivi) cause any director, officer or employee or shareholder of Allergan the Company or any of its Subsidiaries to incur any personal liability in connection with the Debt Financing; (vii) provide in connection with the Debt Financing any information the disclosure of which is prohibited or restricted under Law or is legally privileged; or (ivviii) be required to obtain any consents or resolutions from the pre-Closing board of directors of the Company and, prior to the Closing, the directors, managers and general partners of the Company’s Subsidiaries shall not be required to take any corporate action approving agreements, documents and instruments pursuant to which the Debt Financing is obtained. Nothing in this Section 6.11 shall require any action that would (A) conflict with or violate the Company’s or any of its Subsidiaries’ organizational documents or any Laws or result in the contravention of, or that would reasonably be expected to result in a material violation or breach of, or a material default under, any material Material Contract to which Allergan the Company or any Company Subsidiary is a party or (B) provide access to or disclose information where the Company determines that such access or disclosure could reasonably be expected to jeopardize the attorney-client privilege or contravene in any material respect any Law or Material Contract.
(d) Without affecting any liability for any breach of the representations and warranties set forth in Article IV, the Company and its Subsidiaries is a partyshall have no liability whatsoever to Parent or Purchaser in respect of any financial information or data or other information provided in good faith pursuant to this Section 6.11, in each case, except to the Organizational Documents extent arising or resulting from the willful misconduct, gross negligence or Fraud of Allergan the Company or its Subsidiaries or any applicable Law. AbbVie their respective officers, directors, employees or agents.
(e) For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 6.11 represent the sole obligation of the Company, its Subsidiaries and their Affiliates and their respective directors, officers, employees, agents and other Representatives with respect to cooperation in connection with the arrangement of the Debt Financing and no other provision of this Agreement (including the exhibits and schedules hereto) shall cause be deemed to expand or modify such obligations.
(f) Prior to the Closing, all non-public or other otherwise confidential information provided by regarding the Company or on behalf of Allergan or any of its Subsidiaries obtained by Purchaser or its respective directors, officers, employees, agents or other Representatives pursuant to this Section 7.9 to Section 6.11 shall be kept confidential and otherwise treated in accordance with the Confidentiality Agreement; providedAgreement or other confidentiality obligations that are substantially similar to those contained in the Confidentiality Agreement (which, that Allergan acknowledges and agrees that with respect to the Debt Financing Sources, shall be satisfied by the confidentiality undertakings that will be obtained in connection with syndication of provisions applicable thereto under the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesDebt Commitment Letter).
Appears in 1 contract
Financing Cooperation. The Company (ax) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to to, shall cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, subsidiaries to use their reasonable best efforts, efforts to provide and (y) shall use its commercially reasonable efforts to AbbVie cause its and its Subsidiaries such assistance as may be Subsidiaries’ officers, directors, employees, agents, and other representatives (collectively, “Representatives”) to: provide all cooperation that is reasonably requested by AbbVie Parent to assist Parent and Acquisition Sub in writing the arrangement of any third party debt and equity financing for the purpose of funding all or a portion of Parent’s and Acquisition Sub’s obligations under this Agreement, including the payment of the aggregate Offer Price and the Total Common Merger Consideration, the consideration in respect of the Equity Awards and any amounts that is customary may become payable in respect of the Company Notes as a result of the transactions contemplated hereby, and to pay all related fees and expenses and any other amounts contemplated by this Agreement to be paid by Parent or Acquisition Sub and the repayment, redemption, purchase, defeasance or discharge of any outstanding indebtedness for borrowed money of the Company and its Subsidiaries, and the payment of fees and expenses incurred in connection with therewith (the arranging“Financing”), obtaining including but not limited to (i) as promptly as reasonably practicable, furnishing to Parent and syndication the Financing Sources such customary financial and other information relating to the Company necessary for the completion of such Financing to the extent reasonably requested by Parent to assist in preparation of customary offering or information documents to be used for the completion of the Financing; (ii) cooperating with the marketing efforts of Parent and the Financing Sources, including using commercially reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority participate in a reasonable number of meetingsrequested meetings with the parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, the Financing and the Company’s senior management and Representatives, presentations, road showsroadshows, due diligence, sessions, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required agencies in connection with the Financing Financing; (collectively, “Marketing Material”) and due diligence sessions related thereto, (Ciii) delivering (A) U.S. GAAP audited consolidated balance sheets and consenting to the inclusion or incorporation in any SEC filing related to the Financing statements of income and cash flows of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents Company (the “Historical Financial StatementsAudited Annual Financials”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in for each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements three most recently ended fiscal years that have ended at least 90 days prior to the Closing Date (and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual for such financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or ) and (B) reasonably necessary U.S. GAAP unaudited consolidated balance sheets and related statements of income and cash flows of the Company (the “Quarterly Financials”) for each subsequent interim quarterly period that has ended at least 45 days prior to permit AbbVie the Closing Date, in the case of each of clauses (iii)(A) and (iii)(B), meeting the requirements of Regulation S-X under the Exchange Act as would be applicable to prepare pro forma an Annual Report on Form 10-K or a Quarterly Report on Form 10-Q, as applicable (iv) using commercially reasonable efforts to cause the Company’s independent accountants to provide reasonable assistance to Parent consistent with their customary practice (including to consent to the use of their audit reports on the consolidated financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan Company and its Subsidiaries in any materials relating to the Financing, and to provide any “comfort letters” necessary and reasonably requested by Parent in connection with any debt capital markets transaction comprising a part of the Financing, in each case, on customary terms and consistent with their customary practice); and (iv) to the extent that the Company or any of its Subsidiaries are to be party to the Financing following the occurrence of the Effective Time (x) using commercially reasonable efforts to obtain customary legal opinions and executing and delivering customary closing certificates and documents at the Closing as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used by Parent in connection with the Financing;
, (viy) obtaining Allergan’s independent auditors’ facilitate the execution and delivery at the Closing of definitive documents (including loan agreements, customary comfort letters guarantee documentation (if applicable) and assistance with other applicable loan documents) related to the accounting due diligence activities of the Financing Sources;
Financing, and (viiz) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably as long as such information is requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of prior to the Completion Date in connection with Closing Date, provide to the Financing that relates Sources, at least five (5) Business Days prior to the Closing Date, all customary and reasonable documentation and other information required by regulatory authorities with respect to the Company under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, limitation the USA PATRIOT ACTAct of 2001, as amended; provided, however, that nothing in this Section 6.18 shall require such cooperation to the extent it would (A) unreasonably disrupt or interfere with the business or operations of the Company or any of its Subsidiaries or the conduct thereof, (B) require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with the Financing, prior to the occurrence of the Acceptance Time (except to the extent Parent promptly reimburses (in the case of ordinary course out-of-pocket costs and expenses) or provides the funding (in all other cases) to the Company or such subsidiary therefor), or incur any liability in connection with the Financing that is effective, contingently or otherwise, prior to the occurrence of the Acceptance Time, (C) subject to Sections 6.16 and 6.17 above, require the Company or any of its subsidiaries to enter into any instrument or agreement, or agree to any change or modification to any instrument or agreement, that is effective prior to the occurrence of the Effective Time or that would be effective if the Effective Time does not occur, (D) require any Representative of the Company to take any action in any capacity other than as a Representative of the Company, (E) require the Company or any of its subsidiaries to contravene any applicable Law or their respective organizational documents or breach any Company Material Contract or (F) require the Company to obtain the approval of the Company’s stockholders. Without limiting the foregoing proviso, Parent agrees, promptly upon request, whether or not the Effective Time occurs, to reimburse the Company and its subsidiaries for all of their reasonable out-of-pocket costs, fees and expenses in connection with the Financing promptly following the incurrence thereof. Parent shall indemnify and hold harmless the Company and its respective Representatives from and against any and all liabilities, obligations, losses, damages, claims, costs, expenses, awards, judgments and penalties of any type actually suffered or incurred by any of them in connection with any action taken, or cooperation provided, by the Company or its Subsidiaries or any of their respective Representatives at the request of Parent pursuant to this Section 6.18 and/or the provision of information utilized in connection therewith (other than information provided in writing by the Company or its Subsidiaries specifically for use in connection with the Financing); in each case, except to the extent that any such obligations, losses, damages, claims, costs, expenses, awards, judgments and penalties, fees, costs or other liabilities are suffered or incurred as a result of the Company’s, its Subsidiaries’ or its Representatives’ gross negligence, bad faith or willful misconduct or material breach of this Agreement, as applicable. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Financing, provided such logos are used solely in a customary manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries and on such other customary terms and conditions as the Company shall reasonably impose. Notwithstanding anything in this Agreement to the contrary, Parent and Acquisition Sub understand, acknowledge and agree that under the terms of this Agreement, Parent and Acquisition Sub’s obligation to consummate the Offer, the Merger and the other transactions contemplated hereby is not in any way contingent upon the Financing. Notwithstanding anything to the contrary provided herein or in the Confidentiality Agreement, Parent shall be permitted to share all information provided under this Section 7.9(a) or Section 7.9(b) below6.18 with its potential financing sources, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below subject to (i) pay any commitment customary confidentiality undertakings or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior agreements reasonably satisfactory to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law Company in form and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulessubstance.
Appears in 1 contract
Financing Cooperation. (a) Until Prior to the earlier of Closing Date, the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Company shall use its reasonable best effortsefforts to provide, and shall cause each of its Subsidiaries and Representatives to use its reasonable best efforts, and shall use its their respective reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisorsprovide, to use their reasonable best efforts, to provide to AbbVie Parent (at Parent’s sole expense) and its Subsidiaries such assistance Financing Sources all cooperation as may be reasonably requested by AbbVie Parent, Merger Sub, its Representative or Financing Sources to assist them in writing that is customary arranging and obtaining the Debt Financing to be obtained by Parent or Merger Sub in connection with the arrangingMerger no later than the Closing Date, obtaining and syndication of the Financing, including using which reasonable best efforts with respect toshall include:
(i) participating participation by senior management and advisors of the Company and its Subsidiaries in a reasonable number of meetings (including customary one-on-one sessions), presentations (including rating agency presentations), road shows, and assisting due diligence sessions with prospective financing sources and rating agencies, in connection with the due diligence, syndication or other marketing of the Debt Financing, including using direct contact between senior management (with appropriate seniority and expertise) and Representatives (including accountants) of the Company, on the one hand, and the potential lenders and investors for the Debt Financing, on the other hand, in each case upon reasonable best efforts prior notice and at times and locations to be mutually agreed;
(ii) assistance with the preparation of and providing information regarding the Company and its Subsidiaries reasonably requested by Parent for rating agency presentations, materials for bank information memoranda, marketing materials and similar documents in connection with the Debt Financing, in each case, reasonably necessary and customarily delivered in connection with debt financings of the type being arranged, including assistance to Parent in connection with Parent’s preparation of pro forma and projected financial information; provided, that the Company shall not be responsible for the preparation of such pro forma and/or projected financial information, which shall be prepared solely by Parent and the Company shall have no liability with respect to such information prepared by Parent;
(iii) furnishing Parent reasonably promptly with (x) the audited financial statements of the Company and its Subsidiaries for the fiscal year ended December 31, 2017, which shall be accompanied by an unqualified audit opinion of KPMG LLP and pro forma financial information and financial statements of the Company, including those described in paragraphs 4 and 5 of Exhibit D of the Commitment Letter (including post-Closing pro forma adjustments, including those relating to purchase accounting for the transactions contemplated by this Agreement; provided, that the Company shall not be required to provide any such assistance with respect to financial information or statements relating to (A) the participation by members determination of management the proposed aggregate amount of Allergan with appropriate seniority in a reasonable number of meetingsthe Debt Financing, presentations, road shows, drafting sessions, due diligence sessions the interest rates thereunder or the fees and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, expenses relating thereto; (B) assisting with AbbVie’s preparation the determination of customary materials for registration statementsany post-Closing or pro forma cost savings, offering documentssynergies, private placement memorandacapitalization, bank ownership or other pro forma adjustments desired to be incorporated into any information memoranda, prospectuses, rating agency presentations and similar documents required used in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, Debt Financing; or (C) delivering and consenting to the inclusion Parent or incorporation in any SEC filing of its Subsidiaries or any adjustments that are not directly related to the Financing acquisition of the historical audited consolidated financial statements Company), (y) all other information relating to the Company and unaudited consolidated interim financial statements its Subsidiaries that is necessary to permit the Parent and Merger Sub to prepare the Confidential Information Memorandum (as defined in the Debt Commitment Letter as in effect as of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”date of this Agreement) and (Dz) delivering customary authorization lettersRepresentation and Authorization Letters (the materials set forth in this clause (iii), management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers“Required Financial Information”);
(iiiv) timely furnishing AbbVie otherwise providing Financing Assistance;
(v) assistance with the negotiation, execution and its delivery of definitive financing documents, including credit agreements, guarantee and collateral documents, customary closing certificates (including a customary solvency certificate executed by the Chief Financial Officer of the Company in the form attached to the Debt Commitment Letter), perfection certificates and any schedules thereto as may be required by the Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection by Parent; provided, that such documents (other than the Representation and Authorization Letters) be effective only upon Closing and that the Company shall have no liability with their delivery of any customary negative assurance opinions and customary comfort letters relating respect to such documents prior to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the FinancingClosing;
(vi) obtaining Allergan’s independent auditors’ requesting that the administrative agent under the Company Credit Agreement deliver to Parent, prior to the Closing Date, a customary comfort letters and assistance with the accounting due diligence activities payoff letter in respect of the Financing Sources;Company Credit Agreement, which payoff letter shall authorize the release of all Encumbrances securing such indebtedness upon the repayment of outstanding obligations under the Company Credit Agreement; and
(vii) causing taking all corporate actions, subject to the Financing to benefit from occurrence of the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents Closing, reasonably requested by AbbVie Parent to permit the consummation of the Financing; provided that none of the boards of directors (or equivalent bodies) of the Company or its Subsidiaries shall be required to enter into any resolutions or take similar action approving the Debt Financing Sources until the Closing has occurred.
(b) Nothing in this Section 5.15 will require the Company to (i) waive or amend any terms of this Agreement or agree to pay any fees or reimburse any expenses 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 any definitive agreement that is effective prior to the Effective Time other than the Representation and Authorization Letters; (iii) give any indemnities in connection with the Debt Financing that are effective prior to the Effective Time; or (iv) take any action that, in the good faith determination of the Company, would unreasonably interfere with the conduct of the business of the Company and its Subsidiaries or create an unreasonable risk of damage or destruction to any property or assets of the Company or any of its Subsidiaries. In addition, (A) no action, liability or obligation of the Company, any of its Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to the repayment Debt Financing will be effective until the Effective Time, and neither the Company nor any of its Subsidiaries will be required to take any action pursuant to any certificate, agreement, arrangement, document or refinancing instrument that is not contingent on the occurrence of the Closing or that must be effective prior to the Effective Time; and (B) any indebtedness for borrowed money bank information memoranda and high-yield offering prospectuses or memoranda required in relation to the Debt Financing will contain disclosure reflecting the Surviving Corporation or its Subsidiaries as the obligor. Nothing in this Section 5.15 will require (1) any officer or Representative of Allergan the Company or any of its Subsidiaries to deliver any document or take any action that could reasonably be repaid expected to result in personal liability to such officer or refinanced on Representative; or (2) the Completion Date and Board of Directors of the release of Company to approve any financing or Contracts related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (thereto that are effective prior to the extent requiredEffective Time.
(c) evidence that notice of Parent shall promptly, upon request by the Company (and in any such repayment has been timely delivered to the holders event within ten (10) Business Days of such indebtednessrequest), reimburse the Company for all reasonable and documented out-of-pocket costs and expenses incurred by the Company or any of its Affiliates or Representatives (including reasonable attorneys’ fees and accountants’ fees) in each case connection with its cooperation contemplated by this Section 5.15.
(d) All non-public or other confidential information provided by the Company or any of its Representatives pursuant to this Agreement will be kept confidential in accordance with the terms Confidentiality Agreement, except that Parent and Merger Sub will be permitted to disclose such information to any financing sources or prospective financing sources and other financial institutions and investors that may become parties to the Debt Financing and to any underwriters, initial purchasers or placement agents in connection with the Debt Financing (and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as if parties thereto or (ii) are subject to other confidentiality undertaking reasonably satisfactory to the Company.
(e) Parent shall indemnify and hold harmless the Company and its Affiliates and their respective directors, officers and employees from and against any and all liabilities, losses, damages, claims, fees, costs, expenses (including attorneys’ fees), interest, awards, judgments, fines, inquiries, penalties suffered or incurred and amounts paid in settlement (collectively, “Losses”) suffered or incurred by them in connection with the arrangement and completion of any Debt Financing, capital markets transactions or related transactions by Parent in connection with financing the transactions contemplated hereby and any information utilized in connection therewith except with respect to information in respect of the definitive documents governing Company and its Subsidiaries supplied by the Company and its Representatives specifically for inclusion or incorporation by reference therein, or to the extent such indebtedness (provided that Losses are caused by the gross negligence or willful misconduct of the Company or any such notice or payoff letter of its Affiliates. This Section 5.15(e) shall survive the consummation of the Merger and the Closing and any termination of this Agreement, and is intended to benefit, and may be expressly conditioned on enforced by, the Completionofficers and directors of the Company and its Affiliates and their respective heirs, executors, estates and personal representatives) who are each third party beneficiaries of this Section 5.15(e);.
(ixf) procuring The Company hereby consents to the reasonable use of all of Allergan’s its and its Subsidiaries’ logos in connection with the Financing (Debt Financing; provided that such logos are used solely in a manner that is not intended to and is not or reasonably likely to harm or disparage Allergan the Company or any of its Subsidiaries or the reputation or goodwill of Allergan the Company or any of its Subsidiaries); and
(x) providing at least three (3) Business Days . Parent shall keep the Company informed on a reasonably current basis and in advance reasonable detail of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any status of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause arrange any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesDebt Financing.
Appears in 1 contract
Sources: Merger Agreement (CommerceHub, Inc.)
Financing Cooperation. (a) Until Prior to the earlier of Closing or, if earlier, the Completion and the valid termination of this Agreement pursuant to Agreement, the Company will, and in accordance with Article 9will cause its Subsidiaries to, Allergan shall use its reasonable best effortsefforts (at Parent’s sole cost and expense) to, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie the appropriate Representatives of the Company and its Subsidiaries to, provide such assistance cooperation as may be is customary and reasonably requested by AbbVie in writing that is customary Parent in connection with any Debt Financing, which cooperation will include (1) as promptly as practicable, furnishing Parent with the arranging, obtaining Required Information and syndication of other customary or pertinent information regarding the Company and its Subsidiaries reasonably requested by Parent (or the Debt Financing Sources) in connection with such Debt Financing, including using reasonable best efforts with respect to:
preliminary or “flash” information if requested and information relating to the rental fleet of the Company and its Subsidiaries, (i2) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and drafting sessions with prospective lenders, investors providers or potential providers of the Debt Financing and rating agencies, agencies during normal business hours and at mutually agreed times and at locations reasonably acceptable to Allergan and upon reasonable noticelocations, (B3) reasonably assisting with AbbVie’s Parent in the preparation of customary materials for customarily requested to be used in connection with obtaining the Debt Financing, including rating agency presentations, road show materials, bank information memoranda, credit agreements, registration statements, prospectuses, offering memoranda, bank syndication materials, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations memoranda and similar documents customarily required in connection with the Financing (collectivelyDebt Financing, “Marketing Material”) including the marketing and due diligence sessions related theretosyndication thereof, (C4) delivering assisting Parent with Parent’s preparation of pro forma financial information and consenting to projections, estimates of cost savings, synergies and post-closing adjustments, (5) reasonably cooperating with the inclusion or incorporation in marketing efforts for any SEC filing related to the Financing portion of the historical audited consolidated financial statements Debt Financing, including using its reasonable best efforts to ensure that any syndication efforts benefit from its existing lending relationships and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings using reasonable best efforts to assist Parent in obtaining any credit ratings in connection with the Marketing Material Debt Financing, (in each case, as applicable, subject 6) providing customary authorization letters authorizing the distribution of information provided by the Company or its Subsidiaries to prospective lenders and containing a customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its representation to the Debt Financing Sources with historical financial for the Debt Financing that such information provided by the Company or its Subsidiaries does not contain a material misstatement or omission and other containing a representation to the Debt Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Subsidiaries or its or their securities, (7) causing the independent accountants of the Company to (A) render customary information “comfort letters” (collectively, the “Financing Information”including customary negative assurance comfort and change period comfort) with respect to Allergan financial information regarding the Company and its Subsidiaries as is reasonably requested contained in any materials relating to the Debt Financing, (B) provide consents for use of their reports and opinions in any documents filed or furnished by AbbVie Parent with the SEC or its in any other materials or disclosures relating to the Debt Financing Sources and customarily required in Marketing Material for Financings which financial information of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan Company and its Subsidiaries is included and (AC) participate in a reasonable number of the type that would be required by Regulation S-X due diligence sessions, (8) delivering information and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements documentation related to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan Company and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of prior to the Completion Closing Date such documentation and other information about Allergan and its Subsidiaries as is required and reasonably requested in writing by AbbVie the Debt Financing Sources at least ten (10) Business Days in advance of prior to the Completion Closing Date in connection with the Financing that relates respect to compliance under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation, the USA PATRIOT ACT. Notwithstanding anything U.S.A. Patriot Act of 2001 and rules adopted by the Financial Crimes Enforcement Network of the U.S. Treasury Department, (9) (A) assisting with the pledging of collateral for the Debt Financing, including by permitting the evaluation or appraisal of assets, assisting with field audits, due diligence examinations and evaluations of the current assets, inventory and cash management systems of the Company and its Subsidiaries, (B) assisting with obtaining landlord waivers, consents or estoppels, and (C) assisting with obtaining releases of existing Liens, (10) taking all corporate actions, subject to the contrary occurrence of the Closing, reasonably requested by Parent to permit the consummation of the Debt Financing, (11) cooperating in satisfying the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent the satisfaction of such condition requires the cooperation of, or is within the control of, the Company and its Subsidiaries and (12) assisting with the preparation and execution of definitive Debt Financing Documents (including any guarantee, pledge and security documents, supplemental indentures, currency or interest rate hedging arrangements, other definitive financing documents, or other certificates or documents as may be reasonably requested by Parent or the Debt Financing Sources), and the schedules and exhibits thereto, in each case, as may be reasonably requested by ▇▇▇▇▇▇.
(b) Nothing in this Section 7.9(a7.19 will require the Company Group to (i) waive or Section 7.9(bamend 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 Closing Date, for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent; (ii) belowwithout limiting its obligations to deliver condition redemption notices, executed Payoff Letters, termination notices, payoff letters, bills of sale and Lien release documentation pursuant to Sections 7.16 and 7.17, 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) give any indemnities in connection with the Debt Financing that are effective prior to the Closing Date, and only to the extent previously agreed in writing by the Company; (iv) take any action that, in the good faith determination of the Company, would unreasonably interfere with the conduct of the business of the Company Group in any material respect; (v) except to the extent contemplated with respect to Required Information, prepare separate financial statements for any of the Company Group to the extent not customarily prepared by the Company Group and to the extent such preparation would be unduly burdensome or change any fiscal period; (vi) adopt any resolutions, execute any consents or otherwise take any corporate or similar action to be effective prior to the Closing; (vii) provide any legal opinion on or prior to the Closing; (viii) take any action that will conflict with or violate its organizational documents or any applicable laws in any material respect or would result in a material violation or breach of, or default under, any material agreement to which any member of the Company Group is a party or (ix) prepare or provide Excluded Information. In addition, no action, liability or obligation of the Company Group or any of its Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to the Debt Financing (other than (i) to the extent contemplated with respect to Required Information, (Aii) none customary representation letters to auditors, (iii) in connection with Sections 7.16 and 7.17 or (iv) customary authorization letters (including with respect to the presence or absence of Allergan material non-public information and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing based on financial information and data derived from the Company’s historical books and records)) will be effective until the Closing Date, and the Company Group will not be required to take any action pursuant to any certificate, agreement, arrangement, document or instrument (other than (i) to the extent contemplated with respect to Required Information, (ii) customary representation letters, (iii) in connection with Sections 7.16 and 7.17 or (iv) 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 based on financial information and data derived from the Company’s historical books and records)) that is not contingent on the occurrence of the Closing or that must be effective prior to the Closing Date. Except in connection with the delivery of a chief financial officer certificate in connection with any Required Information, nothing in this Section 7.19 will require (1) any officer, employee or Representative of the Company Group to deliver any certificate or opinion or take any other action under this Section 7.19 that would reasonably be expected to result in personal liability to such officer, employee or Representative; or (2) the Company Board to approve any Debt Financing or Contracts related thereto, effective prior to the Closing Date. For the avoidance of doubt, neither the Company nor any of its Subsidiaries shall be required to take be an issuer or permit obligor with respect to the taking Debt Financing prior to the Closing Date.
(c) The Company shall not be required to provide any information the disclosure of which is prohibited or restricted under applicable Law or is legally privileged; provided, that Parent is notified of the nature of such information for which such disclosure is prohibited.
(d) Without limiting the obligation to provide any action non-public or other confidential information by or on behalf of the Company, all such information provided to Parent or its Affiliates or any of their respective Representatives pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment 7.19 will be kept confidential in accordance with the terms of the Confidentiality Agreement or other fee confidentiality obligations that are substantially similar to those contained in the Confidentiality Agreement or, with respect to the Debt Financing Sources, on customary market terms; provided, that, nothing in this clause (d) will limit the disclosure of such non-public or incur any liability other confidential information of the type that is customarily included in offering documents or marketing materials for the Debt Financing.
(e) Parent shall (x) at the Closing (or, if the Closing does not occur, promptly), upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Company in connection with the cooperation of the Company contemplated by this Section 7.19 (other than third-party the preparation of the Company’s financial statements in the ordinary course of business) and (y) indemnify and hold harmless the Company and its Representatives from and against any and all damages, losses, charges, liabilities, claims, demands, actions, suits, proceedings, payments, judgments, settlements, assessments, deficiencies, taxes, interest, penalties and costs and expenses that are to be promptly reimbursed suffered or incurred by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification them in connection with the arrangement of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur Debt Financing (except (x) other than to the extent required arising from inaccuracy of any historical financial information furnished in writing by Section 7.9(bor on behalf of the Company, its Affiliates or its or its Affiliates’ Representatives or the gross negligence, bad faith, willful misconduct or fraud of the Company, its Affiliates, or its or its Affiliates’ Representatives), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating . The Company hereby consents to the execution thereof use of its and its Subsidiaries’ trademarks in connection with the Debt Financing; provided that would all such uses are in a manner that is not conflict with applicable Law and would be accurate in light intended to or reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the facts and circumstances at the time delivered and Company or its Subsidiaries.
(zf) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan The Company shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause periodically update any Required Information provided to Parent as may be necessary so that such Required Information is (i) Compliant and (ii) meets the applicable requirements set forth in the definition of “Required Information”, in each case throughout the pendency of the Marketing Period. For the avoidance of doubt, subject to the terms and provisions of this Section 7.19, Parent may, to most effectively access the financing markets, request the cooperation of the Company and its Subsidiaries under this Section 7.19 at any time, and from time to time and on multiple occasions, between the date of this Agreement and the Closing; provided that, for the avoidance of doubt, the Marketing Period shall not be applicable as to each attempt to access the markets. The Company agrees to (A) file all reports on Form 10-K and Form 10-Q and Form 8-K (to the extent required to include financial information pursuant to Item 9.01 thereof) and (B) use its reasonable best efforts to file all other Forms 8-K, in each case, required to be filed with the SEC pursuant to the Exchange Act prior to the Closing Date in accordance with the periods required by the Exchange Act. If, in connection with a marketing effort contemplated by any Debt Financing Sources in connection with the Debt Financing, Parent reasonably requests the Company to file a Current Report on Form 8-K pursuant to the Exchange Act that contains material non-public information with respect to the Company and its Subsidiaries, which Parent reasonably determines (and which the Company does not unreasonably object) to include in a customary offering document for the Debt Financing, then the Company shall file a Current Report on Form 8-K containing such material non-public information (it being understood that any material non-public information included in Required Information will be included in such Current Report on Form 8-K).
(g) The Company hereby consents to the use of the logos of the Company in connection with any such information to Debt Financing; provided that such logos shall be disclosed used solely in a manner that would is not result in intended or reasonably likely to harm, disparage or otherwise adversely affect the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan Company or its Subsidiaries, as applicable, to deliver a customary opinion of counsel their reputation or goodwill.
(h) Notwithstanding anything to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law contrary herein, ▇▇▇▇▇▇ and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan ▇▇▇▇▇▇ Sub each expressly acknowledges and agrees that neither the confidentiality undertakings that will be obtained availability, the terms nor the obtaining of any Debt Financing is in connection with syndication any manner a condition to the Closing or the obligations of each Parent and Merger Sub to consummate the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulestransactions contemplated by this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (H&E Equipment Services, Inc.)
Financing Cooperation. (a) Until Consistent with applicable Laws, the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Company shall use its reasonable best effortsefforts to, and shall cause its Subsidiaries and each of its Subsidiaries and its Subsidiaries’ respective officers and employees to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officersto, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie Parent and its Subsidiaries such assistance Subsidiaries, at Parent’s sole expense, all cooperation as may be reasonably requested by AbbVie in writing by Parent in connection with (i) one or more equity or debt offerings or issuances of Parent, that Parent and its Subsidiaries may pursue prior to the Effective Time and (ii) the assumption, restatement or refinancing of the Company Term Loan Credit Agreements by Parent and its Subsidiaries (any such transaction in clauses (i) or (ii) a “Financing”), including, without limitation, in the event such action is customary in connection with the arranging, obtaining and syndication of the applicable Financing, including using reasonable best efforts with respect to:
: (i) participating in and assisting cooperate with the due diligence, syndication or other customary marketing of the efforts relating to such Financing, including using reasonable best efforts with respect to assisting in the preparation of customary confidential information memoranda, private placement memoranda, lender presentations, prospectuses, offering memoranda and other customary offering documents and marketing materials; (Aii) assist in the participation by members preparation of management of Allergan with appropriate seniority rating agency presentations and participate in a reasonable number of meetingsmeetings with rating agencies, presentations, road shows, drafting sessionsroadshows, due diligence sessions, drafting sessions and sessions meetings with prospective lenderslenders and debt and equity investors, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, at such places (which may be by audio or videoconference) as applicable, subject to customary confidentiality provisions and disclaimers);
coordinated reasonably in advance thereof at mutually agreed times; (iiiii) timely furnishing AbbVie and its Financing Sources with historical financial deliver documentation and other customary information (collectively, the “reasonably requested by sources of such Financing Information”) as promptly as reasonably practicable with respect to Allergan (x) applicable “know-your-customer”, FINCEN and anti-money laundering rules and regulations, including the PATRIOT Act and (y) the U.S. Treasury Department’s Office of Foreign Assets Control and the Foreign Corrupt Practices Act, in each case, to the extent such information is required pursuant to the applicable Financing; (iv) deliver as promptly as reasonably practicable all financial information and real property and other diligence materials related to the Company and its Subsidiaries as customary or reasonably necessary for the arrangement or completion of such Financing; (v) direct the Company’s independent auditors to cooperate with any Financing that is reasonably requested by AbbVie or its a securities offering consistent with their customary practice, including requesting the Company’s independent accountants to prepare and deliver customary comfort letters (it being understood that such customary comfort letters shall include a SAS 100 review of any interim financial statements and “negative assurance” comfort covering any “stub” period) if customary for such Financing, in connection with any Financing Sources and customarily required in Marketing Material for Financings of to the applicable typeunderwriters, including all Historical Financial Statements arrangers, initial purchasers or placement agents thereof in each case, on customary terms and other consistent with the customary practice of such independent accountants; (vi) assist with the preparation of pro forma financial information and pro forma financial statements solely with respect to Allergan and its Subsidiaries (A) the Company to the extent customary or reasonably necessary for the arrangement or completion of the Financing, including, if applicable, of the type that would be required by Regulation S-X and Regulation S-K promulgated under the Securities Act if for a public offering of securities of Parent and for Parent’s preparation of pro forma financial statements; (vii) assist in the Financing were incurred by AbbVie preparation of customary projections, estimates and registered on Form S-3 under other forward looking financial information regarding the Securities Act, including audit reports future performance of annual financial statements the Company to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), customary or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings the arrangement or completion of the applicable type;
Financing; and (iiiviii) providing to AbbVie’s the execution and delivery of such definitive financing documents, Table of Contents including certificates, credit agreements, note purchase agreements, securities purchase agreements, dealer manager agreements, solicitation agent agreements, authorization letters, guarantees, schedules, legal counsel and its independent auditors such customary documents opinions and other customary information relating to Allergan and its Subsidiaries documents, as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating necessary to the facilitate such Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with form and substance reasonably satisfactory to the terms of the definitive documents governing party executing such indebtedness (document; provided that any such notice or payoff letter documents referred to in this clause (viii) shall be expressly conditioned effective no earlier than the Effective Time (other than any authorization letters that are required to be given in advance of such time in order for the Financing to be consummated on or after the CompletionEffective Time);
(ix) procuring . The Company hereby consents to the reasonable use of all of Allergan’s its and its Subsidiaries’ logos in connection with the Financing (any Financing; provided that such logos are used solely in a manner that is not intended to and or is not reasonably likely to harm or disparage Allergan the Company or its Subsidiaries or the reputation or goodwill of Allergan such party or its Subsidiaries. Notwithstanding any other provision set forth herein or in any other agreement between Parent and the Company or its affiliates, the parties hereto agree that Parent may share with the arrangers and sources of such Financing customary projections and other confidential information with respect to the Company (including information about the Company’s Subsidiaries) after giving effect to the Merger and the transactions contemplated hereby that the parties have cooperated in preparing, and that Parent, its Subsidiaries and such arrangers and sources of Financing may share information about the Company and its Subsidiaries (notwithstanding anything to the contrary herein or in the Confidentiality Agreements) with potential sources of the Financing in connection with any marketing efforts in connection with the Financing, provided that the recipients of such information agree to customary confidentiality arrangements in form and substance reasonably acceptable to the Company.
(b) During the period from the date of this Agreement until the earlier to occur of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 7.1 (the “Interim Period”), Parent or one or more of its Subsidiaries may (i) commence any one or more of the following: (A) one or more offers to purchase (including any “change of control offer” under the Company Notes Indenture and/or the notes issued thereunder) any or all of the outstanding debt issued under the Company Notes Indenture for cash (collectively, the “Offers to Purchase”); and/or (B) one or more offers to exchange any or all of the outstanding debt issued under the Company Notes Indenture for securities issued by Parent or any of its affiliates (the “Offers to Exchange”); and/or (ii) solicit the consent of the holders of debt issued under the Company Notes Indenture regarding certain proposed amendments thereto (the “Consent Solicitations” and, together with the Offers to Purchase and Offers to Exchange, if any, the “Note Offers and Consent Solicitations”); provided that any such notice or offer shall expressly reflect that, and it shall be the case that, the closing of any such transaction shall not be consummated until the Effective Time. Any Note Offers and Consent Solicitations shall be made on such terms and conditions (including price to be paid and conditionality) as are proposed by Parent and which are permitted by the terms of the Company Notes Indenture and applicable Laws, including SEC rules and regulations. Parent shall consult with the Company regarding the material terms and conditions of any Note Offers and Consent Solicitations, including the timing and commencement of any Note Offers and Consent Solicitations and any tender deadlines. Parent shall have provided the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal, press release, if any, in connection therewith, and each other document relevant to the transaction that will be distributed by Parent in the applicable Note Offers and Consent Solicitations (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Note Offers and Consent Solicitations to allow the Company and its counsel to review and comment on such Debt Offer Documents, and Parent shall give reasonable and good faith consideration to any comments made or input provided with respect thereto by the Company and its legal counsel. Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations (including for the avoidance of doubt any other liability management transaction hereunder that includes a Consent Solicitation), the Company shall execute a supplemental indenture to the Company Notes Indenture in accordance with the terms thereof amending the terms and provisions thereof as described in the applicable Debt Offer Documents in a form as reasonably requested by Parent (the “Supplemental Indenture”); provided that the amendments effected by such supplemental indenture shall not become operative until the Effective Time. During the Interim Period, at Parent’s sole expense, the Company shall and shall cause its Subsidiaries to, and shall cause its and their Representatives to, provide all cooperation reasonably requested by Parent to assist Parent in connection with any Note Offers and Consent Solicitations (including using reasonable Table of Contents best efforts to direct the Company’s independent accountants to provide customary consents for use of their reports to the extent required in connection with any Note Offers and Consent Solicitations). The dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any Note Offers and Consent Solicitations will be selected and retained by Parent. If, at any time prior to the completion of the Note Offers and Consent Solicitations, the Company or any of its Subsidiaries); and, on the one hand, or Parent or any of its Subsidiaries, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall use reasonable best efforts to promptly notify the other party, and an appropriate amendment or supplement prepared by Parent describing such information shall be disseminated to the holders of the notes outstanding under the Company Notes Indenture.
(xc) providing at least three (3) Business Days in advance of Parent shall promptly, upon request by the Completion Date such documentation and other information about Allergan Company, reimburse the Company and its Subsidiaries as is reasonably requested in writing for all reasonable and documented out-of-pocket costs and expenses paid to third parties (including reasonable and documented advisor’s fees and expenses) incurred by AbbVie at least ten (10) Business Days in advance of the Completion Date Company and its Subsidiaries in connection with the Financing that relates cooperation provided pursuant to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a5.13 and indemnify and hold harmless the Company, its Subsidiaries and their respective officers, directors and other Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties (collectively, “Losses”) suffered or incurred by them in connection with any Financing, any information utilized in connection therewith or any action taken by the Company or any Subsidiary of the Company pursuant to this Section 7.9(b5.13, in each case, whether or not the Merger is consummated or this Agreement is terminated; provided, however, that the foregoing indemnity shall not apply with respect to any Losses resulting from any gross negligence or willful misconduct of the Company or its Subsidiaries or Representatives or a Willful Breach of the Company or any Subsidiary of the Company under this Agreement.
(d) belowNotwithstanding the requirements of Section 5.13(a), (A) none of Allergan neither the Company nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to 5.13 that (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) unreasonably interfere unreasonably with the business or operations of Allergan the Company or its Subsidiaries, (ii) would require the Company, its Subsidiaries or any Persons who are directors or officers of the Company or its Subsidiaries to pass resolutions or consents to approve or authorize the execution of any Financing or any Note Offers and Consent Solicitations or execute or deliver any certificate, document, instrument or agreement or agree to any change or modification of any existing certificate, document, instrument or agreement, in each case, that is effective prior to the Effective Time, or that would be effective if the Effective Time does not occur (other than (x) authorization letters contemplated by clause (viii) of Section 5.13(a) and (y) to the extent required to be executed or delivered prior to the Effective Time pursuant to Section 5.13(a)), (iii) would cause any representation or warranty in this Agreement to be breached by Allergan the Company or any of its Subsidiaries, (iv) would require the Company or any of its Subsidiaries (unless waived by AbbVie)to pay any commitment or other similar fee prior to the Effective Time or incur any other expense, liability or obligation in connection with any Financing or any Note Offers and Consent Solicitations prior to the Effective Time, or have any obligation of the Company or any of its Subsidiaries under any agreement, certificate, document or instrument be effective until the Effective Time, (iiiv) could reasonably be expected to cause any director, officer or employee or shareholder stockholder of Allergan the Company or any of its Subsidiaries to incur any personal liability liability, (vi) could reasonably be expected to conflict with the organizational documents of the Company or its Subsidiaries or any Laws, (ivvii) could reasonably be expected to result in a material violation or breach of, or a default (with or without notice, lapse of time, or both) under, any material Contract contract to which Allergan the Company or any of its Subsidiaries is a party, (viii) would require providing access to or disclosing information that would reasonably be expected to jeopardize any attorney-client privilege of the Organizational Documents Company or any of Allergan its Subsidiaries, (ix) would require delivering or causing to be delivered any opinion of counsel in connection with any Financing or any Note Offers and Consent Solicitations (other than to the extent required by Section 5.13(b) in connection with the entry into a Supplemental Indenture, an opinion of counsel if Table of Contents the trustee under the Company Notes Indenture requires an opinion of counsel to the Company) or (x) could reasonably be expected to cause the Company to fail to qualify as a REIT for federal income tax purposes (including by reason of potential payments under Section 5.13(c) from such action).
(e) Upon the request of Parent, the Company shall use reasonable best efforts to, and cause its Subsidiaries and each of its and its Subsidiaries’ respective officers and employees to, facilitate the payoff and termination of the Company Revolving Credit Agreement and, if any loans are outstanding under either Company Term Loan Credit Agreement immediately prior to Closing (and the obligations under such Company Term Loan Credit Agreement are not being assumed by Parent at Closing and such Company Term Loan Credit Agreement is not being amended or restated at Closing), each such Company Term Loan Credit Agreement, including obtaining customary payoff letters in connection therewith (the “Credit Agreement Payoff”); provided that any applicable Law. AbbVie such action described in this clause (e) shall cause all non-public or other confidential information provided not be required unless it can be and is conditioned on the occurrence of the Closing.
(f) For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 5.13 represent the sole obligation of the Company, its Subsidiaries and their respective Representatives with respect to cooperation in connection with the arrangement of any Financing to be obtained by or on behalf of Allergan Parent or any of its Subsidiaries with respect to the transactions contemplated by this Agreement and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with modify such obligations. Notwithstanding the Confidentiality Agreement; providedforegoing, that Allergan acknowledges it is expressly understood and agrees agreed that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules.parties’ obl
Appears in 1 contract
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, and a. The Sellers shall cause each of its Subsidiaries the Group Companies to use its reasonable best effortsprovide to Guarantor, and shall use its reasonable best efforts Commercially Reasonable Efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, representatives of the Group Companies to provide to AbbVie Guarantor, on a reasonably timely basis, all cooperation reasonably requested by Guarantor in connection with the arrangement and marketing of any debt financing (including any issuance of debt securities by Guarantor or Purchaser) incurred in connection with the transactions contemplated hereunder and the repayment of the indebtedness listed on Schedule 5, including by: (i) furnishing Guarantor and its Subsidiaries financing sources as promptly as reasonably practicable with such assistance financial and other pertinent information regarding the Group Companies as may be reasonably requested by AbbVie in writing that is customary Guarantor or Guarantor’s financing sources, including access to and cooperation with the Company’s accountants, (ii) reasonably cooperating with Guarantor’s financing sources and their respective agents with respect to their due diligence, including by giving access to documents relating to the Group Companies for diligence in connection with the arranging, obtaining capital markets transactions,(iii) furnishing Guarantor and syndication of the Financing, including using reasonable best efforts Guarantor’s financing sources promptly with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to any Governmental Authority under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) belowAct, (Aiv) none arranging for customary payoff letters, lien terminations and instruments of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are discharge to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))delivered at Closing providing for the payoff, discharge and termination on the Closing Date of the outstanding indebtedness of the Group and any outstanding financial instruments, listed in Schedule 5, (iiv) execute or deliver any facilitating the execution and delivery at the Closing of definitive financing documents or any other agreement, certificate, document or instrument, or agree related to any change to or modification debt financing at the Closing (provided that no obligation of the Group Companies under any existing agreement, certificate, such document or instrument, in each case that would shall be effective prior to Closing) and (vi) assisting Guarantor in the Completion Date or would be effective if the Completion does not occur (except (x) satisfaction of conditions precedent set forth in any debt financing to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating the satisfaction of such conditions requires the cooperation of or is within the control of the Group Companies. Nothing in this Clause 6.3.1 shall require such cooperation to the execution thereof an extent that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan any Group Company; if, in the reasonable opinion of the Company, additional resources must be hired to allow any Group Company to do so, the reasonable expenses thereof shall be borne by the Purchaser. The Company hereby consents to the use of the logos of the Group Companies in connection with the syndication or its Subsidiariesmarketing of any debt financing, provided that such logos are not used in a manner that would reasonably be expected to harm or disparage the Group Companies or their marks and that such documentation explicitly states that Closing has not yet occurred.
b. Guarantor shall (i) promptly, upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees) incurred by the Group Companies in connection with the cooperation of the Group Companies contemplated by Clause 6.3.1 and (ii) cause indemnify and hold harmless the Group Companies and their respective directors, officers and representatives from, against and in respect of any representation losses imposed on, sustained, incurred or warranty suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement of any debt financing by Guarantor, any other cooperation pursuant to Clause 6.3, and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable Law, except to the extent such losses arise out of fraud or willful misconduct of the Group Companies.
c. For the avoidance of doubt, none of the financing transactions referred to in this Agreement to be breached by Allergan Clause 6.3 shall have any negative impact on the Net Debt or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesNet Working Capital.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Spirit AeroSystems Holdings, Inc.)
Financing Cooperation. (a) Until From the date hereof until the Closing, or the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9Agreement, Allergan shall use its reasonable best effortsthe Seller shall, and the Seller shall cause each of its Subsidiaries to and representatives to, at the Buyer’s cost and expense (other than any costs incurred in connection with the preparation, review and audit of the Annual Financial Statements and the Interim Financial Statements) and at the Buyer’s reasonable request, use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary cooperate with the Buyer in connection with the arranging, obtaining and syndication arrangement of any Debt Financing and/or any Equity Financing. Without limitation of the generality of the foregoing, such reasonable best efforts shall include: (i) cooperating with the arrangement of, or marketing efforts in connection with, the Debt Financing and any Equity Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with causing the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan Company’s senior officers with appropriate seniority expertise, to participate at reasonable times and upon reasonable notice, in a reasonable number of meetings, presentations, meetings (including “road shows”, bank meetings, drafting sessions, due diligence sessions and sessions, sessions with ratings agencies and similar presentations) to and with prospective lenderslenders and other debt holders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan Debt Financing Sources and upon reasonable noticeEquity Financing Sources, (Bii) assisting with AbbVie’s the preparation of customary confidential information materials and other customary marketing materials for registration statements, offering documents, private placement memorandarating agency presentations, bank information memoranda, prospectuses, rating agency prospective lender presentations and similar documents other customary marketing and syndication materials required in connection with the any Debt Financing (collectivelyor any Equity Financing, “Marketing Material”) and due diligence sessions related theretoincluding, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is if reasonably requested by AbbVie or its the Debt Financing Sources Sources, assisting in the preparation of additional version of a confidential information memorandum and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary related lender presentation that does not contain information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation Smaterial non-X and Regulation S-K under public information about the Securities Act Company if the Financing were incurred by AbbVie Company was a reporting company and registered on Form S-3 under providing a customary authorization letter authorizing the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings distribution of the applicable type;
confidential information memorandum to prospective Debt Financing Sources and containing a customary representation, if applicable, that such memorandum does not include information of the type that would be material non-public information about the Company or its respective affiliates or their respective securities if the Company was a reporting company, (iii) providing to AbbVieassisting with the preparation of definitive financing documentation (including officer’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions certificates, loan agreements, guarantees, collateral agreements and customary comfort letters relating evidence of authority) and the schedules and exhibits thereto, in each case, customarily required to the be delivered under any definitive documents, including any Financing Document, for any Debt Financing or Equity Financing;
, (iv) causing Allergan’s independent auditors providing to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan Buyer and to references to such independent auditors as experts in any Marketing Material its Debt Financing Sources and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Equity Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of prior to the Completion Date such Closing Date, all documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to Governmental Authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything Act and Beneficial Ownership Regulation, in each case, as requested at least ten (10) Business Days prior to the contrary in this Section 7.9(a) or Section 7.9(b) belowClosing Date, (Av) none of Allergan nor any of its Subsidiaries providing the Required Information, which shall be Compliant, and such other financial information reasonably required by the Debt Financing Sources and Equity Financing Sources or in connection with any definitive documents, including any Financing Document, for the Debt Financing or any Equity Financing, and promptly informing the Buyer if, to the Knowledge of the Company, there are any facts that would be reasonably likely to require the restatement or other modification of any financial statements comprising a portion of the Required Information in order for such financial statements to comply with GAAP or that the Required Information is not otherwise Compliant, (vi) taking all corporate, partnership, limited liability company and other entity actions that are necessary or customary to obtain the Debt Financing or any Equity Financing and market the transactions contemplated by this Agreement, (vii) providing or causing to be provided any customary legal opinions or consents customarily required to take be delivered under any Financing Document and other documents reasonably requested by the Debt Financing Sources or permit Equity Financing Sources, including comfort letters and consents to the taking inclusion of audit reports from the Company’s auditors and legal opinions and negative assurance letters from the Company’s outside counsel, (viii) otherwise cooperating with the Buyer in the preparation of any action Financing Document or other definitive documents needed for any Debt Financing or any Equity Financing, (ix) assisting the Buyer in the preparation of pro forma financial information and any required or reasonably requested pro forma financial statements and other financial data that is Compliant for any Debt Financing or Equity Financing, and (x) participating at reasonable times and upon reasonable notice in due diligence calls and providing such information regarding the Company, in each case, as reasonably requested by Debt Financing Sources or Equity Financing Sources.
(b) All information provided pursuant to this Section 7.9(a) or Section 7.9(b) below 6.15 shall constitute “Evaluation Material” under the Confidentiality Agreement and shall be kept confidential in accordance with the terms of the Confidentiality Agreement, except that the Buyer shall be permitted to (i) disclose such information (A) on a confidential basis to the Debt Financing Sources or Equity Financing Sources (and their Affiliates and its and their respective Representatives on a confidential basis), in connection with any definitive documents related to the Debt Financing, including the Debt Financing Commitments and any Financing Document, subject to customary confidentiality undertakings by the Debt Financing Sources and the Equity Financing Sources (which may be effected through the acknowledgement confidentiality requirements contained in a clickthrough screen on any electronic platform) and (B) on a confidential basis to ratings agencies and (ii) disclose Required Information in any filing or submission made with or to the SEC in connection with the Financing.
(c) The Company and its Affiliates hereby consent to the use of the Company’s and its Affiliates’ logos in connection with a Debt Financing or Equity Financing and any “banner” or other logo currently used by the Company or its Affiliates; provided that such logos are used solely in a manner that is not reasonably likely to harm or disparage the Company’s or its Affiliates’ reputation or goodwill.
(d) Notwithstanding anything in this Agreement to the contrary, nothing in this Section 6.15 shall require such cooperation to the extent it would (i) unreasonably disrupt or interfere with the business or operations of the Company or (ii) require the Company, its Affiliates, or any of their respective directors, officers, employees or agents to (A) execute or enter into any certificate, instrument, agreement or other document in connection with a Debt Financing (other than customary authorization letters and management representation letters) which will be effective prior to the Closing, (B) pay any commitment or other fee or similar fee, to incur any other liability or obligation or to enter into any agreement effective in connection with the Debt Financing prior to the Closing, unless such fees are or will be reimbursed by the Buyer, (other than third-party costs and expenses C) give any indemnities that are effective prior to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c))the Closing Date, (iiD) execute require their respective boards of directors or deliver equivalent governing bodies to pass resolutions or consents to approve or authorize any definitive financing documents or any other agreement, certificate, document or instrument, or agree such agreement with respect to any change to or modification of any existing agreement, certificate, document or instrument, in each case the Debt Financing that would be effective prior to the Completion Date Closing Date, (E) deliver any certificate or take any other action that would reasonably be effective if expected to result in personal liability to such a director, officer or employee, (F) except as required pursuant to Section 6.15(a)(vii), deliver any legal opinion or consent, (G) except as required pursuant to Section 6.15(a)(ix), prepare any pro forma financial statements, or (H) provide any information that is legally privileged or take any action to the Completion extent it would result in a loss or waiver of any such privilege; provided that the Company shall use its commercially reasonable efforts to obtain any relevant consents under such third party obligations of confidentiality entered into prior to the date of this Agreement to allow for the provision of such information to the extent reasonably requested by the Buyer or the Debt Financing Sources; provided, further, that in the event the Company does not occur provide information that could reasonably be considered material to the Buyer or the Debt Financing Sources because the disclosure thereof would violate any confidentiality agreement or obligation binding on it or waive attorney-client privilege, the Company will promptly provide notice to the Buyer that such information is being withheld to the extent it is legally permissible to provide such notice.
(e) The Buyer shall, promptly after written request by the Seller, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses incurred by the Company prior to the Closing Date in connection with the Debt Financing or Equity Financing, including the cooperation contemplated by this Section 6.15. The Buyer Parties shall indemnify the Seller and its Subsidiaries from, against and in respect of all losses, damages, claims, costs or expenses actually suffered or incurred by any of them in connection with the Debt Financing or Equity Financing and any information used in connection therewith to the fullest extent permitted by applicable Law, except to the extent that any of the foregoing arises from (x) to the extent required bad faith, negligence or willful misconduct by Section 7.9(b)the Seller, any of its Subsidiaries or any of their respective Representatives, as applicable Allergan Supplemental Indentures, or (y) customary officers’ certificates relating information provided by the Seller, any of its Subsidiaries or any of their respective Representatives.
(f) At least two Business Days prior to the execution thereof anticipated Closing Date, the Seller shall deliver to the Buyer duly executed payoff letters, in customary form and reasonably satisfactory to the Buyer, with respect to the obligations under the Credit Agreement (the “Payoff Letters”) (it being agreed that would not conflict with applicable Law and would be accurate in light the Company shall use reasonable best efforts to provide drafts of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant Payoff Letters to the clause Buyer no less than three Business Days prior to the anticipated Closing Date). The Payoff Letters shall (i)(Di) abovespecify the aggregate outstanding amount required to be paid to fully satisfy all obligations then due and payable as of the anticipated Closing Date under the Credit Agreement (including the applicable per diem amount thereafter) (the “Payoff Amount”), (ii) contain wire and payment instructions, (iii) provide access that all Encumbrances, guarantees and collateral arrangements in connection therewith shall be, upon receipt of the Payoff Amount, automatically and irrevocably released and terminated and (iv) provide that all loan documents and obligations thereunder (other than contingent obligations that expressly survive) shall be, upon receipt of the Payoff Amount, automatically and irrevocably terminated, satisfied and discharged.
(g) The Buyer Parties will use reasonable best efforts to or disclose information give the Company a reasonable opportunity to review any marketing materials in connection with the Financing that Allergan identifies the Company or any of its Subsidiaries reasonably determines would jeopardize by name prior to disseminating such materials to any attorney-client privilege of Allergan actual or proposed Debt Financing Source; provided, that the opportunity for the Company to review such marketing materials shall only apply to the extent such marketing materials identify the Company or any of its Subsidiaries by name and were prepared by, or on behalf of, a Buyer Party.
(provided h) If requested by the Buyer, the Seller shall cause the Company to use commercially reasonable efforts to: (i)(A) deliver to the Depositary Trust Company (“DTC”) in accordance with the applicable procedures of DTC and in accordance with that Allergan shallcertain indenture, dated as of April 5, 2022, by and among FLOW, the guarantors party thereto and Wilmington Trust, National Associate, as trustee (the “Indenture”) a change of control offer conditioned on the occurrence of the Closing and (B) provide any other reasonable cooperation requested by Buyer to facilitate such change of control offer and (ii)(A) send a notice of redemption with respect to all or a portion of the outstanding aggregate principal amount of FLOW’s 8.750% Senior Notes due 2030 (the “Senior Notes”) (which shall be in form required by the Indenture and conditioned upon the consummation of the Closing, and shall cause its Subsidiaries to, use their respective reasonable best efforts be in form and substance reasonably satisfactory to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (ivCompany) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that (the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered“Trustee”)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none take such actions as may be required under the Indenture to cause the Trustee to proceed with the redemption of the Allergan Board, officers Senior Notes under the Indenture and to provide the notice of Allergan, or directors and officers redemption (conditioned upon consummation of the Subsidiaries Closing if provided prior to the Closing) to the holders of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments Senior Notes pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures)Indenture, and (C) neither Allergan nor prepare and deliver all other documents required under the Indenture (including any of its Subsidiaries shall officer’s certificates and legal opinions to the extent required to be delivered prior to the Closing) as may be required under the Indenture to take or permit issue a notice of redemption (conditioned upon consummation of the taking of any action that would (iClosing, if issued prior to the Closing) interfere unreasonably with for the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential Senior Notes in accordance with the Confidentiality Agreement; providedIndenture and (D) otherwise provide for (x) the redemption of the Senior Notes on the Closing Date or such later date as shall be specified by Buyer, that Allergan acknowledges and agrees (y) the satisfaction and discharge of the Senior Notes on the Closing Date or such later date as shall be specified by Buyer. The notice of redemption delivered to the Trustee and holders of the Senior Notes (if delivered prior to Closing) shall state that the confidentiality undertakings that will redemption date may be obtained delayed until such time as any condition to redemption stated therein shall be satisfied or such redemption may not occur and such notice may be rescinded in the event such condition shall not have been satisfied. Buyer shall provide to the Company the funds necessary to consummate any such redemption (including the payment of all applicable premiums) on the applicable redemption date. Notwithstanding anything in this Section 6.15(h) to the contrary, the Buyer Parties shall be solely responsible for preparing drafts of all notices, documents or other materials instruments contemplated by this Section 6.15(h) and for all costs and expenses incurred in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rulesobligations contemplated hereby.
Appears in 1 contract
Financing Cooperation. (a) Until From and after the earlier of date hereof and pending the Completion and the valid termination of this Agreement pursuant to and Closing, unless Buyer shall otherwise consent in accordance with Article 9writing, Allergan shall use its reasonable best effortsSellers shall, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, Company to provide to AbbVie on a timely basis all such reasonable assistance and its Subsidiaries such assistance cooperation in connection with the Financing (as defined in Section 9.9 below) as may be reasonably requested by AbbVie in writing that is customary in connection with the arranging, obtaining and syndication of the FinancingBuyer, including using reasonable best efforts with respect to:
(i) participating making senior management, officers and advisors of Company reasonably available for customary lender meetings and cooperating with prospective sources of financing in and assisting with the performing their due diligence; (ii) subject to customary confidentiality arrangements, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, providing due diligence sessions materials to potential financing sources; (iii) furnishing financial and sessions with prospective lenders, investors and rating agencies, at times and at locations other information that is reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting including the timely delivery of the financial information required to the inclusion or incorporation in any SEC filing related to be delivered under the Financing Commitment (as defined in Section 9.9 below)); (iv) assisting Buyer and the Financing Source in the preparation of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization lettersall information memoranda, management representation letterslender presentations, confirmationsrating agency presentations, and undertakings similar documents in connection with the Marketing Material Financing; (v) reasonably assisting Buyer and the Financing Source in each casethe negotiation, as applicable, subject to customary confidentiality provisions preparation and disclaimers);
(ii) timely furnishing AbbVie and its execution of definitive transaction documents for the Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested by Buyer in connection with their delivery therewith (including, without limitation, executing or obtaining appropriate corporate resolutions, certificates and opinions of any customary negative assurance opinions counsel and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and other documents related government filings filed or used in connection with the Financing;
thereto); (vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of entering into definitive transaction documents for the Financing Sources;
(including credit agreements, notes, guarantees, pledge and security agreements and account control agreements) and consummating the borrowings thereunder, so long as they only become effective immediately prior to the Closing; (vii) causing facilitating the Financing to benefit from pledge of and granting and perfection of Liens on applicable collateral (including the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie release, identification, grant or the Financing Sources relating to the repayment or refinancing perfection of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced Liens on the Completion Date and the release assets of related liens and/or guarantees (Company), if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos provide security in connection with the Financing at and after the Closing; (provided that viii) using reasonable best efforts to obtain the assistance of accountants of Company to provide consents for the use of their reports in materials related to the Financing; (ix) using commercially reasonable efforts to obtain such logos are used solely in a manner that is not intended to consents, approvals and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is authorizations which may be reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date Buyer in connection with the Financing that relates and collateral arrangements in connection therewith; and (x) cooperating with Buyer to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, satisfy the USA PATRIOT ACT. Notwithstanding anything conditions precedent to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none Financing to the extent within the control of Allergan Company; provided that neither Company nor any of its Subsidiaries directors, officers, managers or employees, nor any Seller, shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other similar fee or to incur any liability other Liability or expense whatsoever (other than third-party costs fees and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (iiBuyer) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures)Closing, and (C) neither Allergan nor any of its Subsidiaries shall be required to take provided, further, that no action or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached inaction by Allergan Company or any of its Subsidiaries (unless directors, officers, managers or employees, or by any Seller, under this Section 5.8 may form the basis of any claim by Buyer or Acquisition Co. that the Financing was delayed or in any other way negatively impacted thereby, any and all of which claims are hereby waived by AbbVie)Buyer and Acquisition Co, (iii) in each case so long as Sellers shall have sought in good faith to comply, and to cause any directorCompany to comply, officer or employee or shareholder with the provisions of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules5.8.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Smart Balance, Inc.)
Financing Cooperation. (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan Seller shall use its reasonable best efforts, and shall cause each of its Subsidiaries the Sale Entities to use its their reasonable best efforts, and each of them shall use its their reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, representatives to use their reasonable best efforts, to provide customary cooperation, to AbbVie and its Subsidiaries such assistance as may be the extent reasonably requested by AbbVie Buyer in writing that is customary writing, in connection with the arrangingoffering, obtaining and syndication arrangement, syndication, consummation, issuance or sale of any Financing or Alternative Financing obtained in accordance with this Section 5.13 (provided that such requested cooperation does not unreasonably interfere with the Financingongoing operations of Seller, including the Sale Entities or any of its Affiliates), including, to the extent so requested, using reasonable best efforts with respect to:
: (i) participating furnish promptly to Buyer the Financing Information and such other financial information regarding the Sale Entities as is reasonably requested by Buyer in and assisting connection with the due diligenceFinancing and reasonably available to Seller; (ii) provide reasonable and customary assistance to Buyer and the Financing Parties in the preparation of, syndication or other marketing of the Financing, including using reasonable best efforts and provide information with respect to the Sale Entities customarily included in, (A) customary offering documents, offering memoranda, offering circulars, private placement memoranda, registration statements, prospectuses, syndication documents and other syndication materials, including information memoranda, lender and investor presentations, bank books and other marketing documents, and similar documents for any portion of the participation by members Financing and (B) materials for rating agency presentations; (iii) cooperate with the marketing efforts of Buyer and the Financing Parties, including, to the extent applicable, obtaining representation and authorization letters and arranging for customary auditor consents for use of any Financing Information and other financial data in the marketing and offering documents; (iv) make senior management or other appropriate personnel of Allergan the Sale Entities available, at reasonable times and locations and upon reasonable prior notice, to participate in meetings (including one-on-one conference or virtual calls with appropriate seniority in a reasonable number of meetingsFinancing Parties and potential Financing Parties), drafting sessions, presentations, road shows, drafting sessions, rating agency presentations and due diligence sessions and sessions with prospective lendersother customary syndication activities, investors and rating agenciesprovided, at times and at locations reasonably acceptable the Sale Entities’ option in consultation with Buyer, any such meeting or communication may be conducted virtually by videoconference or other media; (v) cause the Sale Entities’ independent registered public accounting firm to Allergan and upon reasonable noticeprovide customary assistance, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with provided that the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and independent registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports public accounting firm shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors required to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery preparation of any financial statements other than such assistance that is necessary for any capital markets transaction by the Buyer to comply with applicable Allergan Supplemental Indentures)securities laws, and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result participate in a material violation or breach of, or a default under, any material Contract to which Allergan or any reasonable number of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all nondue diligence sessions; 62 4863-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition6343-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules.8441 v.8
Appears in 1 contract
Financing Cooperation. (a) Until In connection with the earlier of Debt Financing, the Completion Sellers shall cause the Companies and the valid termination of this Agreement pursuant Company Subsidiaries to and in accordance with Article 9, Allergan shall use its reasonable best effortsprovide, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its their reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal their legal, tax, regulatory and accounting advisorsRepresentatives, to use their reasonable best effortsprovide, to provide to AbbVie and its Subsidiaries such assistance cooperation in connection with the arrangement of the Debt Financing as may be reasonably requested by AbbVie in writing the Purchaser and that is necessary, customary or advisable in connection with the arranging, obtaining and syndication Purchaser’s efforts to obtain the Debt Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of any of the FinancingCompanies or the Company Subsidiaries), including using reasonable best efforts with respect tothe following actions by the Companies and the Company Subsidiaries:
(i) participating in and assisting with a reasonable number of meetings taking into account the due diligence, syndication or other marketing nature of the Financing, Debt Financing (including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority participate in a reasonable number of one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, the Debt Financing, and using reasonable efforts to cause the members of senior management and Representatives of the Companies and Company Subsidiaries to participate in such meetings), rating agency presentations, road shows, drafting sessions, due diligence and drafting sessions and sessions with prospective lendersFinancing Sources and investors, investors and rating agenciescooperating reasonably with the marketing efforts of the Purchaser and the Financing Sources, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, in each case in connection with all or any portion of the Debt Financing;
(Bii) assisting with AbbVie’s the Purchaser and the Financing Sources in the preparation of customary materials for registration statementsrating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectusesbusiness projections, rating agency presentations lender and investor presentations, prospectuses and other similar materials for any bank or other debt financing and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements Debt Financing, including using reasonable efforts to cause the execution and unaudited consolidated interim financial statements delivery of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) reasonable and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings letters in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers)bank information memoranda;
(iiiii) timely furnishing AbbVie cooperating reasonably with the Financing Sources’ customary due diligence;
(iv) using reasonable efforts to obtain, in cooperation with the Purchaser and its the Financing Sources with historical financial Sources, from the Companies’ auditor such accountants’ comfort letters, reports and the consent of such auditor to the use of their reports in any materials relating to the Debt Financing, and using reasonable efforts to obtain such hedging agreements, legal opinions, appraisals, surveys, engineering reports, title insurance and other customary information (collectively, the “Financing Information”) with respect to Allergan documentation and its Subsidiaries items as is may be reasonably requested by AbbVie or its the Purchaser and as are customary for financings similar to the Debt Financing;
(v) to the extent required by the Debt Commitment Letters, as promptly as practical, furnishing the Purchaser and the Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries with: (A) all financial statements, pro forma financial information, financial data, audit reports and other information regarding the Companies of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if for registered offerings of debt securities of the Financing were incurred by AbbVie Purchaser and registered on Form S-3 of the type and form customarily included in offering documents used in private placements pursuant to Rule 144A promulgated under the Securities Act (including, to the extent required pursuant to the Securities Act, including audit reports the report of annual the Companies’ auditor thereon and related management discussion and analysis of financial condition and results of operations) or necessary for the preparation of customary confidential information memorandum for credit facility financings to consummate the offering(s) of debt securities or syndication of credit facilities, as applicable, contemplated by the Debt Commitment Letters (provided that in no circumstance shall the Companies be required to provide subsidiary financial statements to or any other information of the extent so type required (which audit reports shall not be subject to any “going concern” qualificationsby Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X, Compensation Disclosure and Analysis required by Regulation S-K Item 402(b) or other information customarily excluded from a Rule 144A offering memorandum), or (B) reasonably as otherwise necessary in order to permit AbbVie receive customary “comfort” (including “negative assurance” comfort) from the Companies’ independent accountants with respect to prepare pro forma the financial statements customary for Financings information to be included in such offering documents (all such information in clauses (A) and (B) of this clause (v), the applicable type“Required Information”);
(iiivi) using reasonable best effort to take such actions as are reasonably requested by the Purchaser or the Financing Sources to facilitate the satisfaction of the conditions set forth in the Debt Commitment Letters (to the extent the satisfaction of such conditions requires actions by or cooperation of the Companies and the Company Subsidiaries);
(vii) (A) using reasonable best efforts to provide monthly unaudited financial statements (excluding footnotes) consisting of consolidated balance sheets and related statements of income, stockholders’ equity and cash flows within 25 days of the end of each month prior to the Closing Date, in each case prepared on a “carve-out” basis and in a manner and containing information consistent with each Company’s current practices; (B) providing GAAP unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Companies and the Company Subsidiaries within 45 days of the end of each fiscal quarter prior to AbbVie’s legal counsel the Closing Date; and its independent auditors (C) providing GAAP audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Companies and the Company Subsidiaries as of or for the fiscal year ended December 31, 2014, no later than April 14, 2015, if the Closing has not occurred by such customary date;
(viii) executing and delivering, at and effective as of the Closing, such definitive financing documents, including any credit or purchase agreements, guarantees, pledge agreements, security agreements, mortgages, deeds of trust and other security documents, borrowing base certificates, solvency certificates or other certificates, documents and other customary information instruments relating to Allergan guarantees, the pledge of collateral and its Subsidiaries similar documents, as may be reasonably requested in connection with their delivery of any customary negative assurance opinions by the Purchaser and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used are required in connection with the Debt Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters , and assistance otherwise reasonably facilitating the pledging of collateral, at and effective as of the Closing, and cooperating reasonably in connection with the accounting due diligence activities pay-off of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected therebyEncumbrances, including customary payoff letters and (Purchaser’s efforts to effect the extent required) evidence that notice replacement or backing of any such repayment has been timely delivered to outstanding letter of credit maintained or provided by the holders of such indebtedness, in each case in accordance with Companies or the terms Company Subsidiaries at and effective as of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);Closing; and
(ix) procuring consents taking all corporate or other actions and providing such other assistance, taking into account the nature of the Debt Financing, as reasonably requested by the Purchaser to permit the Financing Sources to conduct audit examinations, appraisals and other evaluations with respect to the reasonable use Companies’ and the Company Subsidiaries’ current assets and other collateral, and to evaluate its cash management and accounting systems, policies and procedures relating thereto for the purposes of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); andestablishing collateral arrangements;
(x) providing at least three (3) Business Days in advance of the Completion Date such prior to Closing, providing all documentation and other information about Allergan the Sellers, the Companies and its the Company Subsidiaries as that is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to Sources and the Financing Sources reasonably determine is required by applicable “know your customer” and anti-money laundering rules and regulations, regulations including without limitation, limitation the USA PATRIOT ACT. Notwithstanding anything Act; and
(xi) taking all corporate actions, effective as of the Closing, reasonably requested by the Purchaser to permit the consummation of the Debt Financing and to permit the proceeds thereof, including any High Yield Financing, to be made available to the contrary in Purchaser at the Closing to consummate the transactions contemplated by this Section 7.9(a) or Section 7.9(b) belowAgreement, (A) provided that none of Allergan nor any of its the Companies or the Company Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment commitment, premium, legal expense, survey or other similar fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, Liability in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Acquisition Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations Closing for which it is not reimbursed or (vii) prepare any pro forma financial information or projections, (B) none of indemnified by the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover RulesPurchaser.
Appears in 1 contract
Sources: Purchase Agreement (Forterra, Inc.)
Financing Cooperation. (a) Until From the date hereof until the Closing (or the earlier of the Completion and the valid termination of this Agreement pursuant to and Section 6.1), subject to the limitations set forth in accordance with Article 9this Section 4.12, Allergan Company shall use its reasonable best effortsefforts to, and shall cause each of its Subsidiaries to use its reasonable best effortsefforts to, and shall use its reasonable best efforts to cause its and their respective officersRepresentatives to, employees in each case at Acquiror’s sole expense, provide customary and advisors and other Representatives, including legal and accounting advisors, reasonable cooperation to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary the Acquiror in connection with the arranging, obtaining and syndication of the Financing, including using reasonable best efforts with respect toincluding:
(i) participating in and assisting with the due diligencepreparation of Offering Documents, syndication including furnishing reasonable and customary representation and authorization letters in connection therewith (including with respect to the presence or absence of material non-public information about Company and its Subsidiaries and customary representations regarding the accuracy of the information provided by Company contained therein);
(ii) preparing and furnishing to Acquiror and the Financing Sources as promptly as practicable such customary financial statements, schedules or other marketing of financial data or information relating to Company and its Subsidiaries reasonably requested by Acquiror or the Financing Sources and necessary or advisable to consummate the Financing, including in each case, meeting the respective requirements of the conditions set forth in paragraphs 4(B) and 5 of Exhibit B to the Commitment Letter, which in any event shall include audited consolidated financial statements of Company covering the three fiscal years ended at least 90 days prior to the Effective Date, and unaudited financial statements for any regular quarterly interim fiscal period or periods of Company ended after the date of the most recent audited financial statements and at least 45 days prior to the Effective Date (the information required to be delivered pursuant to this clause (ii) being referred to as the “Required Information”);
(iii) participating (and using reasonable best efforts with respect to (A) the participation by cause members of senior management of Allergan with appropriate seniority Company to participate) in customary marketing efforts, including a reasonable number of meetings, presentations, road shows, drafting sessionssessions with rating agencies, due diligence sessions and drafting sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required actual and prospective lenders and investors in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors assisting in the preparation of, and executing and delivering, subject to provide customary cooperation with the Financingoccurrence of the Effective Date, Definitive Documents, including guarantee and collateral documents and other certificates and documents as may be reasonably requested by Acquiror;
(v) obtaining the consents of Allergan’s independent auditors using reasonable best efforts to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of assist the Financing Sources;
(vii) causing the Financing to benefit Sources in benefiting from the existing lender lending relationships of Allergan Company and its Subsidiaries;
(viiivi) providing documents facilitating the pledging of, and granting, recording and perfection of security interests in and Liens on, share certificates, securities and other collateral, subject to the occurrence of the Effective Date;
(vii) taking all corporate actions necessary, in each case, subject to the occurrence of the Effective Date, and reasonably requested by AbbVie or Acquiror, to authorize the consummation of the Financing Sources relating and to permit the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries proceeds thereof to be repaid or refinanced made available on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion)Effective Date;
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(xviii) providing at least three (3) New York Business Days in advance of prior to the Completion Effective Date such all documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing required by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulationsregulations including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 to the extent requested at least ten New York Business Days prior to the anticipated Effective Date;
(ix) using reasonable best efforts to assist the Acquiror in satisfying the conditions precedent set forth in the Commitment Letter to the extent satisfaction thereof requires the cooperation, and is within the control, of Company, its Subsidiaries or their respective Representatives;
(x) periodically updating or supplementing any Required Information provided to Acquiror or the Financing Sources to the extent that any such Required Information, to the knowledge of Company, (i) is not Compliant or (ii) does not meet the applicable requirements set forth in the definition of “Required Information”;
(xi) assisting, and to the extent requested by the Acquiror, using reasonable best efforts to cause its independent accountants to assist, Acquiror in connection with Acquiror’s preparation of pro forma financial information and financial statements to be included in any Offering Documents (including without limitationassisting, and to the USA PATRIOT ACTextent requested by the Acquiror, using reasonable best efforts to cause its independent accountants to assist, Acquiror with the conversion of Company’s historical financial information from IFRS to GAAP); it being understood that the assistance of the Company’s independent accountants shall be on terms and conditions consistent with such accountant’s customary practices; and
(xii) using reasonable best efforts to cooperate with Acquiror in Acquiror’s efforts to obtain public corporate family, public corporate entity and public facilities ratings from rating agencies. Notwithstanding anything to the contrary contained in this Section 7.9(a) or Section 7.9(b) below, Agreement (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to including this Section 7.9(a) or Section 7.9(b) below to 4.12): (i) pay nothing in this Agreement (including this Section 4.12) shall require any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) such cooperation to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that it would (i1) interfere unreasonably with the business or operations of Allergan Company or its Subsidiaries, (ii2) cause encumber any representation or warranty in this Agreement to be breached by Allergan of the assets of Company or any of its Subsidiaries prior to Closing or (unless waived by AbbVie), (iii3) cause any director, officer or employee or shareholder of Allergan require Company or any of its Subsidiaries to pay any commitment or other fee, make any other payment, reimburse any expenses or otherwise incur any personal liability liabilities or give any indemnities prior to the Closing (ivunless contingent upon the Closing or paid directly in full by Acquiror on behalf of Company or any such Subsidiary prior to the effectiveness thereof) result in a material violation or breach of, or a default under, any material Contract to which Allergan and (ii) no obligation of Company or any of its Subsidiaries is under any agreement, certificate, document, instrument, consent or opinion executed pursuant to the foregoing shall be effective until the Closing (provided, however, that Company shall provide, prior to Closing to the extent reasonably requested by Acquiror, reasonable and customary representation and authorization letters with respect to any Offering Documents).
(b) Acquiror shall indemnify, defend and hold harmless Company, its Subsidiaries and its and their respective Representatives from and against any and all losses, damages, claims, injuries, liabilities, judgments, awards, penalties, fines, costs or expenses (including fees and expenses of counsel and accountants) or settlement payment suffered or incurred by any of them in connection with or as a partyresult of the Financing (including any alternative financing), any Project Financing Agreement Amendments, any Credit Agreement Termination or the Organizational Documents of Allergan Discharge (including any information utilized in connection therewith, other than any information relating to Company or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan Company or its Subsidiaries expressly for use in connection therewith), in each case other than to the extent any of the foregoing arises from the bad faith, gross negligence or willful misconduct of, or material breach of this Agreement by, Company or any of its Subsidiaries or their respective Representatives. Acquiror shall, promptly upon request by Company, reimburse Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ and accountants’ fees) incurred by Company or its Subsidiaries or its Representatives pursuant in connection with or as a result of the Financing (including any alternative financing), any Project Financing Agreement Amendments, any Credit Agreement Termination or the Discharge (including with respect to this Section 7.9 to be kept confidential any information utilized in accordance with the Confidentiality Agreementconnection therewith; provided, however, that Allergan acknowledges Company shall bear all such costs related to its obligations with respect to the preparation, review, delivery and agrees audit of historical information relating to Company or its Subsidiaries substantially in the form and substance that the confidentiality undertakings that will be obtained Company customarily produces). Company hereby consents to the use of its and its Subsidiaries’ logos in connection with syndication of the Financing, any Project Financing will be Agreement Amendments, any Credit Agreement Termination or the Discharge; provided, however, that such logos are used solely in a form customary for use in manner that is not intended, or reasonably likely, to harm or disparage Company or any of its Subsidiaries or the syndication reputation or goodwill of acquisition-related debt during a takeover offer period in compliance with the requirements Company or any of the Panel and the Takeover Rulesits Subsidiaries.
Appears in 1 contract
Sources: Arrangement Agreement (Rayonier Advanced Materials Inc.)
Financing Cooperation. (a) Until Prior to the earlier of (i) the Completion Closing and (ii) the valid termination of this Agreement pursuant to and in accordance with Article 9Agreement, Allergan shall use its reasonable best effortsthe Company shall, and shall cause each of its Subsidiaries to use its reasonable best effortsto, and the Company and its Subsidiaries shall use its their reasonable best efforts to cause its and their respective officersRepresentatives to, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries Parent such assistance as may be cooperation reasonably requested by AbbVie in writing that is customary Parent in connection with the arranging, obtaining and syndication of the Financing, including using reasonable best efforts with respect toincluding:
(i) participating in a customary and assisting reasonable number of meetings (including customary one-on-one meetings or conference calls with the due diligenceparties acting as lead arrangers, syndication underwriters, initial purchasers or other marketing of agents for, and prospective lenders and purchasers of, the FinancingFinancing and senior management and representatives, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number and expertise, of meetingsthe Company), presentations, road showsdue diligence sessions, drafting sessions, due diligence sessions road shows and sessions with prospective lenders, investors and rating agencies, at times ;
(ii) providing customary and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting assistance with AbbVie’s the preparation of customary materials for registration statementsrating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuseslender and investor presentations, rating agency presentations registration statements, prospectuses (registered or otherwise) and similar documents required and materials for the Financing, including execution and delivery of customary representation letters in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing prior audits of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization lettersCompany, management representation letters, confirmationsauditors comfort letter, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers)bank information memoranda;
(iiiii) timely furnishing AbbVie Parent and its Financing Sources with historical customary financial and other customary information (collectively, regarding the “Financing Information”) with respect to Allergan and its Subsidiaries Company as is may be reasonably requested by AbbVie or its Financing Sources and customarily required Parent (including in Marketing Material for Financings connection with Parent’s preparation of the applicable typepro forma financial statements), including all Historical Financial Statements including, without limitation, unaudited interim financial statements, financial data, projections, audit reports and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie for a registered public offering, and registered on Form S-3 of type and form customarily 63 included in private placements under Rule 144A under the Securities Act, to consummate the offerings contemplated by the Financing, or as otherwise reasonably required in connection with the Financing, or as otherwise necessary in order to assist in receiving customary “comfort” (including audit reports of annual financial statements “negative assurance” comfort) from independent accountants in connection with the offerings contemplated by the Financing, and reasonable and customary authorization letters to the extent so required Financing Sources authorizing the distribution of information to prospective lenders and investors and containing customary information (which audit reports shall not be subject to any “going concern” qualificationsall such information in this clause (iii), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;“Required Information”);
(iiiiv) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan the Company that is reasonably available to it to assist Parent in the preparation of, and its Subsidiaries executing and delivering, any credit agreement, indentures, underwriting agreements, purchase agreements, currency or interest hedging arrangements, other definitive financing documents, officer’s certificates, customary closing documents, or other certificates or documents with respect to the Financing contemplated by the Financing as may be reasonably requested by Parent (including customary consents of accountants for use of their reports in connection with their delivery of any customary negative assurance opinions and customary comfort letters materials relating to the Financing;
); provided that, in no event shall any such credit agreement, indenture, underwriting agreement, purchase agreement, currency or interest hedging arrangement, other definitive financing document, officer’s certificate, customary closing document, or other certificate or document with respect to the Financing contemplated by the Financing (ivto the extent binding on the Company) causing Allergan’s independent auditors have any force or effect prior to provide customary cooperation with the FinancingClosing;
(v) obtaining furnishing Parent and its Financing Sources as promptly as practicable with (i) audited consolidated financial statements of the consents Company and its subsidiaries for the fiscal year ended June 30, 2014 and (ii) unaudited consolidated financial statements of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan Company and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with its subsidiaries for each fiscal quarter ending after June 30, 2014 at least 50 days before the Financing;Closing Date; and
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with taking all corporate actions, contingent upon the accounting due diligence activities occurrence of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents Closing, reasonably requested by AbbVie Parent that are necessary or customary to permit the Financing Sources relating consummation of the Financing, it being agreed that the Company’s directors, managers or similar governing individuals or bodies shall not be required to adopt resolutions approving any portion of the repayment Financing. Notwithstanding anything contained in this Section 5.10 or refinancing in any provision of this Agreement, in no event shall the Company be required to deliver any indebtedness for borrowed money audited financial statements beyond those included in the Financial Statements.
(b) The Company will use its reasonable best efforts to update Required Information provided to Parent pursuant to clauses (iii) and (iv) of Allergan Section 5.10(a) as may be necessary such that the Required Information does not contain any untrue statement of material fact or omit to state any material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading.
(c) Notwithstanding anything contained in this Section 5.10 or in any provision of this Agreement, in no event shall Parent or Merger Sub be required (i) to amend or waive any of the terms or conditions hereof or (ii) except as agreed by Parent in its sole discretion as specified in Section 1.2, to consummate the Closing any earlier than two Business Days after the final day of the Marketing Period.
(d) None of the Company, its Subsidiaries and their respective partners, members, directors, managers, officers, employees, accountants, legal counsel and other Representatives shall be required to be repaid take any action that would require such Person to waive or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of amend any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing this Agreement, require such indebtedness (provided that Person to pay any such notice commitment or payoff letter shall be expressly conditioned other similar fee for which it has not received prior reimbursement by or on the Completion);
(ix) procuring consents behalf of Parent or agree to the reasonable use of all of Allergan’s logos provide any indemnity in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries performance of its respective obligations under this Section 5.10 and any information utilized in connection therewith (except to the extent arising out of or relating to information provided to Parent by or on behalf of the reputation Company pursuant to this Section 5.10), or goodwill of Allergan would cause the Company or any of its Subsidiaries)Affiliates to breach this Agreement or become unable to satisfy a condition to the Closing; and
(x) providing at least three (3) Business Days provided, that, notwithstanding the foregoing, such accountants and legal counsel may be subject to potential liability in advance connection with comfort letters, audit opinions and legal opinions provided in connection therewith. Parent shall indemnify, defend and hold harmless each of the Completion Date such documentation Company, its Subsidiaries and their respective partners, members, directors, managers, officers, employees, accountants, legal counsel and other information about Allergan Representatives from and its Subsidiaries as is reasonably requested in writing against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by AbbVie at least ten (10) Business Days in advance of the Completion Date them in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in performance of their respective obligations under this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor 5.10 and any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrumentinformation utilized in connection therewith, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur other than (except (xi) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates arising out of or relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided to Parent by or on behalf of Allergan or any of its Subsidiaries or Representatives the Company pursuant to this Section 7.9 to be kept confidential 5.10, (ii) such as arises from comfort letters, audit opinions and legal opinions provided by accountants or legal counsel in accordance with connection therewith and (iii) out-of-pocket costs and expenses of accountants, consultants, legal counsel, agents and other Representatives incurred by the Confidentiality Agreement; provided, that Allergan acknowledges Company and agrees that the confidentiality undertakings that will be obtained its Affiliates in connection with syndication the cooperation required by this Section 5.10 (such costs and expenses referred to in this clause (ii), the “Section 5.10 Expenses”). If the Closing does not occur, Parent shall, promptly upon request of the Financing will Company at any time after the termination of this Agreement for any reason (which request shall be accompanied by documentation reasonably satisfactory to Parent that such expenses were incurred solely in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance connection with the requirements cooperation required by this Section 5.10), reimburse the Company and its Subsidiaries for all reasonable Section 5.10 Expenses incurred through the date of such termination. For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 5.10 represent the sole obligation of the Panel Company, its Subsidiaries and their respective partners, members, directors, managers, officers, employees, accountants, legal counsel and other Representatives with respect to cooperation in connection with the Takeover Rulesarrangement of the Financing.
Appears in 1 contract
Sources: Merger Agreement (Green Dot Corp)