Financing Cooperation. (a) For purposes of this Section 6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise. Prior to the Closing, Seller shall, and shall use reasonable best efforts to cause each of its Affiliates and Representatives to, use reasonable best efforts to provide to Buyer such cooperation reasonably requested by Buyer and reasonably required in connection with the Financing or the Alternate Financing, including (to the extent reasonably requested and reasonably required): (i) participating in a customary and reasonable number of meetings, presentations, due diligence sessions, drafting sessions, road shows and sessions with rating agencies; (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered or otherwise) and similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii) as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer with (x) audited balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with financial and other information regarding the Business and the Assets as may be reasonably requested by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities 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 “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt or equity securities contemplated by the Financing (all such information in clause (iii) and this clause (iv), including the Carve-Out Financials, the “Required Information”); (v) providing information relating to the Business that is reasonably available to it to assist in the preparation of any credit agreements, indentures, 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 Buyer; (vi) furnishing Buyer and their Financing sources as promptly as practicable all financial information required to be delivered pursuant to the Financing Letter and monthly financial statements for the Business (to the extent prepared in the ordinary course of business); (vii) assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Financing, as reasonably requested by Buyer; provided that (A) nothing herein shall require such cooperation to the extent it would require Seller or any of its Affiliates to waive or amend any terms of this Agreement, incur any Liabilities, pay any fees, reimburse any expenses, in each case, with respect to the Financing, prior to the Closing for which it has not received prior reimbursement by or on behalf of Buyer, or would cause Seller or any of its Affiliates to breach this Agreement or become unable to satisfy a condition to the Closing, (B) nothing herein shall require such cooperation from Seller or its Affiliates to the extent it would unreasonably interfere with the ongoing operations of Seller or its Affiliates and (C) there shall be no action, Liability or obligation of Seller or its Affiliates under any certificate, agreement, arrangement, document or instrument relating to the Financing. Notwithstanding anything to the contrary in this Section 6.10, neither Seller nor its Affiliates shall be in breach of the covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth herein. (b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement of the Financing, any other financing and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement. (c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii) and (iv) of Section 6.10(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 made therein, in the light of the circumstances under which they were made, not misleading.

Appears in 3 contracts

Sources: Purchase and Sale Agreement (Southern Union Co), Purchase and Sale Agreement (Laclede Group Inc), Purchase and Sale Agreement (Laclede Gas Co)

Financing Cooperation. (a) ~~For purposes of this Section 6.10~~Prior to Closing, the ~~term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise. Prior to the Closing, Seller~~ Company shall, and shall ~~use reasonable best efforts to~~ cause ~~each of~~ its ~~Affiliates and Representatives~~ Subsidiaries to, use reasonable best efforts to provide (or cause its Subsidiaries to ~~Buyer~~ provide) such cooperation ~~reasonably requested~~ in connection with any debt, equity or equity-linked financing deemed necessary or appropriate by ~~Buyer and reasonably required~~ Parent, including, among other things, any debt or equity financing to be incurred or contemplated to be incurred in connection with the Transactions as reasonably requested by Parent (collectively, the “Financing”); provided that the Company shall in no event be required to provide (or cause its Subsidiaries to provide) such assistance that shall unreasonably interfere with its or its Subsidiaries’ business operations. Such assistance shall include using reasonable best efforts to do the following, each of which shall be promptly upon ▇▇▇▇▇▇’s written request with reasonable prior notice and at Parent’s sole cost and expense: (i) (A) furnish, or cause to be furnished to, Parent (x) the audited consolidated balance sheets, statements of cash flows and statements of operations of the Acquired Companies as of and for the most recently completed fiscal year ended at least 90 days prior to the Closing Date, (y) the unaudited consolidated balance sheets and related statements of income and cash flows of the Acquired Companies for each fiscal quarter (other than the fourth fiscal quarter) and related six-month period or nine-month period, as applicable, ended after the most recent fiscal year ended at least 45 days prior to the Closing Date and the comparable prior year three-month, six-month or nine-month period, as applicable and (z) any other financial data and other financial information regarding the Acquired Companies (1) that is reasonably requested by Parent in connection with Parent’s preparation of pro forma financial statements (giving effect to the Transactions and other appropriate matters), (2) that would be of the type and form that are customarily included in offerings or placements of securities or (3) that would otherwise be of the type, form and substance reasonably necessary for an investment bank to receive customary comfort from auditors (including “negative assurance” comfort and change period comfort), (B) inform Parent if the chief executive officer, chief financial officer, treasurer or controller of the Company has knowledge of any facts as a result of which a restatement of any of the Acquired Companies’ financial statements provided pursuant to clause (A) hereto, in order for such financial statements to comply with GAAP, is necessary, in each case, reasonably promptly after such officer obtains notice thereof and (C) with respect to such Acquired Companies’ financial statements provided pursuant to clause (A) hereto, updating such financial statements (x) to the extent necessary to permit a registration statement filed by Parent using such financial statements to be declared effective by the SEC and (y) to the extent reasonably requested by the Acquired Companies’ independent auditors to issue a customary comfort letter (in accordance with its normal practices and procedures and including negative assurance); (ii) make senior management of the Company available to assist in the preparation of customary presentations, marketing materials, offering and private placement documents and rating agency presentations, as well as a customary confidential information memorandum and authorization letters in connection therewith, and participate in road shows, drafting and due diligence sessions and meetings with rating agencies; (iii) deliver to Parent the Financing Deliverables; (iv) make senior management of the Company available to reasonably participate and cooperate with Parent in (A) the negotiation of the Financing Documents and reasonably facilitate the satisfaction of any conditions precedent therein, (B) the preparation of prospectuses, offering memoranda, investor presentations and other customary marketing materials in connection with any Financing and marketing and syndication efforts thereof solely with respect to business and financial information relating to the Acquired Companies as reasonably requested by Parent or its Financing Sources and to the ~~Alternate~~ extent customary for financings of the sort contemplated to be incurred by Parent and (C) reasonable and customary due diligence, in each case, with or by the Financing Sources (or prospective lenders or investors in any bank or capital markets Financing) at mutually agreed times and places; (v) cause the Acquired Companies’ current independent accountants to provide customary assistance and cooperation in any Financing, including using reasonable best efforts to cause such accountants to (A) participate in a reasonable number of drafting sessions and accounting due diligence sessions upon reasonable advance notice and at mutually agreed times and places, (B) provide any necessary customary written consents to use their audit reports relating to the Acquired Companies and to be named as an “Expert” in documents as are customary and (C) provide any customary “comfort letters” (including customary negative assurance comfort, including change period comfort) with respect to financial information relating to the Acquired Companies as reasonably requested by Parent or its Financing Sources and to the extent customary for Financings of the sort contemplated to be incurred by Parent; and (vi) assist Parent and/or any Merger Sub with any filings, at the Parent’s sole expense, required to be made with the SEC or any other administrative authority in order to consummate the Transactions and any Financing (which assistance shall be limited to information with respect to the Acquired Companies), including to deliver to Parent any underlying information with respect to the Acquired Companies required for Parent and/or any Merger Sub to make any required filings with the SEC in connection with the Transactions and any Financing (to the extent reasonably requested by Parent or its Financing Sources and reasonably required): (i) participating in a customary and reasonable number of meetings, presentations, due diligence sessions, drafting sessions, road shows and sessions with rating agencies; (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered or otherwise) and similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii) as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer with (x) audited balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with financial and other information regarding the Business and the Assets as may be reasonably requested by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities 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 “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt or equity securities contemplated by the Financing (all such information in clause (iii) and this clause (iv), including the Carve-Out Financials, the “Required Information”); (v) providing information relating to the Business that is reasonably available to it to assist in the preparation of any credit agreements, indentures, 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 Buyer; (vi) furnishing Buyer and their Financing sources as promptly as practicable all financial information required to be delivered pursuant to the Financing Letter and monthly financial statements for the Business (to the extent ~~prepared in~~ customary for Financings of the ~~ordinary course of business~~sort contemplated to be incurred by ▇▇▇▇▇▇); (vii) assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Financing, as reasonably requested by Buyer; provided that (A) neither the Company nor any of its Affiliates will be required to make any filings with the SEC in connection with any Financing (other than in any applicable proxy statement), (B) nothing ~~herein~~ in this Section 6.17 shall require any such ~~cooperation~~ action to the extent it would (x) unreasonably interfere with the business or operations of the Acquired Companies or require ~~Seller~~ the Acquired Companies to agree to pay any fees, reimburse any expenses or give any indemnities, in any case, that would be effective prior to the Closing, or for which Parent does not promptly reimburse or indemnify it, as the case may be, to the extent required under this Agreement or (y) require any of the Acquired Companies or their respective Representatives or Financing Sources to execute, deliver or enter into, or perform any financing document that is contemplated to be effective prior to the Closing (other than the authorization letters referred to in clause (ii) above), (C) none of the general partners or board of directors (or other similar governing body) or committee or subcommittee thereof of any Acquired Company shall be required to adopt resolutions approving the Financing Documents that are contemplated to be effective prior to the Closing (and any such adoption or approval at Closing shall be performed by such general partner, board of directors (or other similar governing body) or committee or subcommittee thereof as constituted after the Effective Time and Closing), (D) nothing in this Section 6.17 shall require any change in the Company’s or any of its ~~Affiliates~~ Subsidiaries’ fiscal years and (E) none of the Acquired Companies shall be required to provide any information or take any action to the extent it would (1) violate Applicable Law (provided that, to the extent possible, the parties shall cooperate in good faith to permit disclosure of such information or to permit such action in a manner that preserves compliance with Applicable Law), (2) violate any attorney-client or work-product privilege or similar protection (provided that, to the extent possible, the parties shall cooperate in good faith to permit disclosure of such information or to permit such action in a manner that preserves such privilege or similar protection), (3) violate any applicable confidentiality obligation of any Acquired Company that is binding with respect to such information, and for which consent to disclosure has not been obtained (provided that, to the extent possible, the parties shall cooperate in good faith to permit disclosure of such information or to permit such action in a manner that preserves compliance with such confidentiality obligation), (4) require any Acquired Company to waive or amend any terms of this Agreement, ~~incur~~ (5) constitute a default under, or give rise to any ~~Liabilities~~right of termination, ~~pay~~ cancellation or acceleration of any ~~fees~~right or obligation of such Acquired Company or to a loss of any benefit to which such Acquired Company is entitled under any provision of any agreement or other instrument binding upon such Acquired Company, ~~reimburse~~ (6) result in the creation or imposition of any ~~expenses~~Lien on any asset of such Acquired Company (except any Lien on any of the Acquired Companies’ respective assets that becomes effective only upon the Closing), (7) result in ~~each case~~any Acquired Company’s or any of its Affiliates’ directors, managers, officers, general or limited partners, employees, counsel, financial advisors, auditors, agents and other authorized representatives incurring any personal liability with respect to any matters relating to any financing or (8) directly result in any condition to Closing set forth in Article VII to fail to be satisfied by the End Date or otherwise directly result in a breach of this Agreement by any Acquired Company. (b) To the extent identifying any of the Acquired Companies by name, the Company shall have the right to review and comment on marketing materials used in connection with the arrangement of any Financing prior to the dissemination of such materials to potential Financing Sources or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided that the Company shall communicate in writing its comments, if any, to Parent and its counsel within a reasonable period of time under the circumstances and consistent with the time accorded to other participants who were asked to review and comment on such marketing materials. The Company shall not be required to agree to any contractual obligation of the Company relating to any financing that is not conditioned upon the Closing and that does not terminate without liability to the Company and its Affiliates (other than liability resulting from customary circumstances such as breach of any obligation of the Company and its Affiliates, bad faith, willful misconduct, fraud or gross negligence) upon the termination of this Agreement. The Company shall not be required to deliver or cause the delivery of any legal opinions, authorization and representation letters or solvency certificates in connection with any financing, except the authorization letters set forth in clause (a) above. In addition, the parties hereto agree that, notwithstanding anything herein to the contrary, any information with respect to the ~~Financing~~prospects and projections for the Acquired Companies in connection with any financing will be the sole responsibility of Parent, and neither the Acquired Companies nor any of their Affiliates, directors, managers, officers, general or limited partners, employees, counsel, financial advisors, auditors, agents and other authorized representatives, shall have any liability or incur any damages with respect thereto or be required to provide any projections or information or make any presentations with respect to capital structure or other pro forma information relating thereto or the manner in which Parent intends to operate, or cause to be operated, the Acquired Companies after the Closing (provided that prior to the Closing for which it has not received prior reimbursement by or on behalf of Buyer, or would cause Seller or any of its Affiliates to breach this Agreement or become unable to satisfy a condition to the Closing, ~~(B) nothing herein shall~~ the Company may reasonably be requested to provide such historical and other underlying financial information as Parent may require to assemble any such ~~cooperation from Seller or its Affiliates~~ presentations and other pro forma information to the extent ~~it would unreasonably interfere with~~ reasonably required by the ~~ongoing operations of Seller or its Affiliates and (C) there~~ Financing Sources; provided, further, that the Company shall not be ~~no action, Liability or obligation of Seller or its Affiliates under~~ responsible in any ~~certificate, agreement, arrangement, document or instrument~~ manner for information relating to the ~~Financing~~proposed debt and equity capitalization that is required for such presentations or other pro forma financial information). (c) Parent shall indemnify and hold harmless the Acquired Companies, and each of their Representatives, from and against any and all reasonable and documented out-of-pocket costs or expenses (including reasonable and documented out-of-pocket attorneys’ fees of no more than one (1) primary firm of outside counsel to the Acquired Companies, taken as a whole), judgments, fines, losses, claims, damages, liabilities or amounts paid in settlement that are suffered or incurred in connection with any contemplated Financing or any information, assistance or activities provided in connection therewith, except in instances of gross negligence, fraud or willful misconduct of the Acquired Companies or their representatives as finally determined in a non-appealable judgment by a court of competent jurisdiction. Parent shall promptly reimburse the Acquired Companies for any and all documented out-of-pocket Third Party costs and expenses incurred by the Acquired Companies and each of their respective Representatives in connection with any such financing or such assistance. (d) Notwithstanding anything to the contrary ~~in this Section 6.10~~herein, ~~neither Seller nor its Affiliates shall be in breach of~~ it is understood and agreed that the ~~covenant~~ condition precedent set forth in Section 7.02(b), as applied to the Company’s obligations under this Section ~~6.10 if it~~ 6.17, shall be deemed to be satisfied unless the applicable financing has acted in good faith to comply with the cooperation and assistance set forth herein. (b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement not been obtained as a direct result of the ~~Financing, any other financing and/or the provision~~ Company’s Willful Breach of ~~information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement~~its obligations under this Section 6.17. (c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii) and (iv) of Section 6.10(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 made therein, in the light of the circumstances under which they were made, not misleading.

Appears in 3 contracts

Sources: Merger Agreement (Sculptor Capital Management, Inc.), Merger Agreement (Rithm Capital Corp.), Merger Agreement (Sculptor Capital Management, Inc.)

Appears in 3 contracts

Sources: Merger Agreement (Duke Energy CORP), Merger Agreement (Piedmont Natural Gas Co Inc), Merger Agreement

Financing Cooperation. (a) ~~For purposes of this Section 6.10, the term “Financing”~~ The Company shall ~~include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise. Prior to the Closing, Seller shall,~~ and shall ~~use reasonable best efforts to~~ cause ~~each of~~ its ~~Affiliates and Representatives~~ Subsidiaries to, ~~use reasonable best efforts to provide to Buyer such cooperation~~ at Buyer’s sole expense, reasonably ~~requested by Buyer and reasonably required~~ cooperate in connection with the arrangement of any Debt Financing or the Alternate Financing, including (to the extent reasonably requested and reasonably required): (i) participating in a customary and reasonable number of meetings, presentations, due diligence sessions, drafting sessions, road shows and sessions with rating agencies; (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered or otherwise) and similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii) as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer with (x) audited balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with financial and other information regarding the Business and the Assets as may be reasonably requested by Buyer; provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company or its Subsidiaries. Such cooperation by the Company and its Subsidiaries shall include, at the reasonable request of Buyer, using their respective commercially reasonable efforts to: (i) furnish such financial statements and other financial data and other information relating to the Company and its Subsidiaries and requested by Buyer ~~(including in connection with Buyer’s preparation of pro forma financial statements)~~or its Representatives as may be reasonably necessary or advisable to consummate any Debt Financing, including ~~unaudited interim~~ financial statements, financial data, projections, audit reports and other information (w) constituting audited financial statements relating to the Company and its Subsidiaries for each of its three most recent fiscal years ended at least 60 days prior to the Closing Date and unaudited financial statements relating to the Company and its Subsidiaries for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior years) and at least 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review), (x) of the type and form required by Regulation S-X and Regulation S-K of promulgated under the ~~Securities~~ 1933 Act ~~of 1933~~ for a registered public ~~offering~~offering of debt securities, ~~and~~ (y) of the type and form customarily included in private placements of debt securities under Rule ~~144A, to consummate~~ 144A of the ~~offering(s) of debt or equity securities contemplated by the Financing~~1933 Act, or (z) as otherwise reasonably required in connection with ~~the Financing,~~ any Debt Financing or as otherwise necessary in order to assist in receiving customary “comfort” (including “negative ~~assurance~~reassurance” comfort) from independent accountants in connection with ~~the~~ offering(s) of debt securities in connection with any Debt Financing; provided that the Company’s public filings with the Securities and Exchange Commission under the 1934 Act, as amended, of any such financial statements will satisfy the requirements of these items (w), (x) and (y); provided, further, that the Company’s sole obligation with respect to the preparation of any pro forma financial information and financial statements for inclusion in any confidential information memorandum, prospectus, offering memorandum or ~~equity securities contemplated by the Financing (all such information~~ other marketing and syndication materials shall be as set forth in clause (viii) of this Section 7.08(a); (ii) cause its independent accountants to cooperate with any financing source providing financing to Buyer or any of its Affiliates consistent with their customary practice and obtain customary accountants’ “comfort letters” (including customary “negative assurances”) and customary consents to the inclusion of audit reports in connection with any Debt Financing; (iii) provide information related to the Company and ~~this clause~~ its Subsidiaries reasonably necessary to assist Buyer or any of its Affiliates in the preparation of one or more confidential information memoranda, prospectuses, offering memoranda and other marketing and syndication materials reasonably requested by Buyer or any of its Affiliates; (iv) provide the reasonable use by Buyer and its Affiliates of the Company’s and its Subsidiaries’ logos for syndication and underwriting, as applicable, of financing (subject to advance review of and consultation with respect to such use); provided that such logos are used solely in a manner that is reasonable and customary for such purposes and that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries or any of their respective products, ~~including the Carve-Out Financials~~services, ~~the “Required Information”)~~offerings or intellectual property rights; (v) ~~providing information relating~~ participate (and causing senior management and representatives, with appropriate seniority and expertise, to participate) in a reasonable and limited number of meetings, presentations and road shows with prospective lenders and investors and in drafting sessions and due diligence sessions, as applicable, and otherwise cooperate with the Debt Financing Sources’ documentary due diligence, to the Business that is reasonably available to it to assist in the preparation of any credit agreements, indentures, purchase agreements, currency or interest hedging arrangements, other definitive financing documents, officer’s certificates, extent customary ~~closing documents, or other certificates or documents with respect to the Financing contemplated by the Financing as may be reasonably requested by Buyer~~and reasonable; (vi) ~~furnishing~~ provide information reasonably necessary to assist Buyer ~~and their Financing sources as promptly as practicable all financial information required to be delivered pursuant~~ or any of its Affiliates in its preparation of material relating to the ~~Financing Letter~~ Company and ~~monthly financial statements~~ its Subsidiaries for ~~the Business (to the extent prepared in the ordinary course of business)~~rating agency presentations; (vii) ~~assisting~~ provide at least three (3) Business Days prior to the Acceptance Time all documentation and other information about the Company and its Subsidiaries as is required by applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act to the extent reasonably requested by any financing source providing financing to Buyer or any of its Affiliates at least ten (10) Business Days prior to ~~obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which~~ the ~~Assets or the Business are bound; and~~anticipated Acceptance Time; (viii) ~~cooperating~~ provide information reasonably necessary to assist Buyer or any of its Affiliates with ~~Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental~~ the preparation of pro forma financial information and ~~other inspections, title insurance and other documentation and items relating to the Financing, as reasonably requested by Buyer; provided that (A) nothing herein shall require such cooperation~~ financial statements to the extent ~~it would require Seller~~ required by SEC rules and regulations (including those required to be included in any periodic report that Buyer or any of its Affiliates is required to file under the 1934 Act following the Closing) or necessary or reasonably and customarily required by any Debt Financing Source providing financing to Buyer or any of its Affiliates to ~~waive~~ be included in any offering documents; (ix) obtain customary payoff letters and any necessary lien terminations and other instruments of discharge in connection with repayment of existing indebtedness of the Company and its Subsidiaries reasonably requested by Buyer or ~~amend~~ any ~~terms~~ of ~~this Agreement~~its Affiliates; (x) cooperate with the providers of the Debt Financing to ensure that, to the extent practicable and appropriate, any syndication efforts in connection with the Debt Financing benefit from the Company’s and its Subsidiaries’ existing lending relationships; (xi) supplement the written or formally presented information (other than projections and other forward-looking materials and information of a general economic or industry specific nature) provided by the Company or its Subsidiaries to the extent such information contains any material misstatement of fact or omits to state any material fact necessary to make such information, taken as a whole, not misleading in any material respect promptly after gaining knowledge thereof; (xii) assist the Buyer in the delivery in a timely fashion of customary authorization letters to the providers of the debt financing authorizing the distribution of information to prospective lenders and containing a customary 10b-5 representation and a representation to the providers of the debt financing that, in the case of any public-side version of the information materials provided to such providers, such information does not include material non-public information about the Company, its Affiliates or any of their respective securities; (xiii) cooperate with the Buyer’s legal counsel in connection with any legal opinions that may be required to be delivered in connection with the Debt Financing; (xiv) prevent the syndication, incurrence or issuance, or any attempt to syndicate, incur or issue, or any ~~Liabilities~~announcement or authorization of the announcement of the syndication, incurrence or issuance, of any debt facility or any debt security of the Company or any of its Subsidiaries, except as otherwise permitted under the commitment letter with respect to the Debt Financing or under Section 5.01; provided that neither the Company nor any of its Subsidiaries nor any of their respective Affiliates or Representatives shall be required to (A) pay any commitment or other fees~~, reimburse any expenses~~, in each case, in connection with ~~respect to the~~ any Debt Financing, prior to the Closing for which it has not received prior reimbursement by or on behalf of Buyer, or would cause Seller or any of its Affiliates to breach this Agreement or become unable to satisfy a condition to the Closing, (B) ~~nothing herein shall require such cooperation from Seller or its Affiliates to~~ give any indemnities in connection with any debt financing, (C) take any action that, in the ~~extent it~~ good faith determination of the Company, would unreasonably interfere with the ~~ongoing operations~~ conduct of ~~Seller~~ 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 ~~Affiliates and~~ Subsidiaries, (CD) ~~there shall be no action~~provide any information the disclosure of which is prohibited or restricted under applicable Law or subject to legal privilege, ~~Liability~~ or ~~obligation~~ that is confidential or proprietary to the providing Party, (E) take any action that would conflict with or violate its organizational documents or any applicable Law or would result in a violation or breach of, or default under, any agreement to which the Company or any of ~~Seller~~ its Subsidiaries is a party or ~~its Affiliates under~~ (F) execute any ~~certificate,~~ agreement, ~~arrangement~~certificate, document or instrument ~~relating~~ pursuant to ~~the Financing. Notwithstanding anything to the contrary in~~ this Section ~~6.10, neither Seller nor its Affiliates shall be in breach of~~ 7.08(a) with respect to any Debt Financing that is not contingent on the ~~covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth herein~~Closing. (b) Buyer shall, promptly upon request by the Company, reimburse the Company for all out-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 Section 7.08(a). Buyer shall indemnify and hold harmless the ~~Seller Indemnitees from~~Company, its Subsidiaries and their respective Representatives, from and against any and ~~in respect of any Losses imposed on, sustained,~~ all losses suffered or incurred ~~or suffered by, or asserted against,~~ by any of ~~them, directly or indirectly relating to, arising out of or resulting from the arrangement of the Financing,~~ them in connection with any ~~other~~ debt financing ~~and/or the provision of~~ and any information utilized in connection therewith to (other than material misstatements or omissions in information provided by the ~~fullest extent permitted by applicable Legal Requirement~~Company or any of its Subsidiaries for use in such financing). (c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii) and (iv) of Section 6.10(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 made therein, in the light of the circumstances under which they were made, not misleading.

Appears in 3 contracts

Sources: Purchase Agreement, Purchase Agreement (NXP Semiconductors N.V.), Purchase Agreement (Qualcomm Inc/De)

Financing Cooperation. (a) ~~For purposes~~ The Company shall, and shall cause its Subsidiaries to, reasonably cooperate in connection with the arrangement of ~~this Section 6.10~~(1) any Anticipated Financing and (2) any other public offering by Parent of its debt or equity securities (such financings the “Financing”). Such cooperation by the Company and its Subsidiaries shall include, at the reasonable request of Parent or Buyer, using their reasonable best efforts to: (i) furnish (x) audited consolidated statements of financial position and related consolidated income statements and consolidated statements of comprehensive income, changes in shareholders’ equity and cash flows of the Company and its Subsidiaries for the three most recently completed fiscal years ended at least one-hundred-twenty (120) days prior to the anticipated date of such Financing and unaudited condensed consolidated interim statements of financial position and related condensed consolidated interim income statements and condensed consolidated interim statements of comprehensive income, changes in shareholders’ equity and cash flows of the Company and its Subsidiaries for any fiscal quarter (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements and at least sixty (60) days prior to the anticipated date of such Financing (and the corresponding periods of the prior fiscal year), (y) as promptly as reasonably practical, all financial data, audit reports and other financial information of the Company and its Subsidiaries of the type required by the SEC’s Form 20-F promulgated under the 1934 Act and other accounting rules and regulations of the SEC as may reasonably be requested of the type and form customarily included in registered public offerings or private placement memoranda pursuant to Rule 144A of the Securities Act and, in the case of private placement memoranda, subject to customary exceptions, and (z) all information with respect to the Company necessary for Parent and Buyer to prepare any pro forma financial statements required to be included in any such offering document (including (A) to the extent an audited consolidated statement of financial position and related consolidated income statements of the Company as of and for the annual periods presented by Parent in preparing any such pro forma financial statements are not available, furnishing to Parent an unaudited consolidated statement of financial position and related consolidated income statements of the Company as of and for such periods presented by Parent and (B) such financial information as Parent may reasonably request in order to permit Parent to complete any required reconciliation from IFRS to GAAP and any required reclassifications to conform to Parent’s financial statement presentation), it being understood that the preparation of pro forma financial statements and the pro forma adjustments to be presented shall be the responsibility of Parent and Buyer (the information referred to in clauses (x), (y) and (z), collectively, the ~~term~~ “~~Financing~~Financing Information”); provided, that such Financing Information shall be limited to the type of information that would be required in connection with a registered public offering, or in the case of an offering conducted under Rule 144A, customarily included in a private placement memorandum conducted under Rule 144A; (ii) cause its independent registered public accounting firm to reasonably cooperate with any Financing Sources consistent with such independent registered public accounting firm’s customary practice and obtain customary accountants’ “comfort letters” ~~shall include~~ (including customary “negative assurances”) with respect to the information provided pursuant to clause (i)(x) above and customary consents to the inclusion of audit reports in connection with the Financing and participation by the Company’s independent registered public accounting firm in due diligence sessions conducted in connection with the provision of such comfort letters and consents, and provide any ~~Permanent~~ necessary management representation letters to its independent registered public accounting firm in connection with the foregoing; (iii) provide information (A) related to the Company and its Subsidiaries reasonably necessary to assist Parent or any of its Affiliates, and assist Parent and its Affiliates, in the preparation of one or more customary confidential information memoranda, offering memoranda or prospectuses and (B) reasonably necessary to assist Parent or any of its Affiliates in its preparation of customary material relating to the Company and its Subsidiaries for rating agency presentations or as otherwise reasonably requested by Parent or the Financing Sources in connection with the syndication or other marketing of the Financing (collectively the materials described in this clause (iii), the “Marketing Material”); (iv) provide the reasonable use by Parent and its Affiliates of the Company’s and its Subsidiaries’ logos for syndication and underwriting, as ~~defined~~ applicable, of the Financing (subject to advance review of and consent of the Company with respect to such use); provided, that such logos are used solely in a manner that is reasonable and customary for such purposes and that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries or any of their respective products, services, offerings or Owned Intellectual Property Rights; (v) cause Senior Management and Representatives, with appropriate seniority and expertise, to participate in due diligence sessions, and otherwise cooperate with the Financing Sources’ documentary due diligence, to the extent customary and reasonable; provided that Senior Management shall not be required to attend any such meetings on more than three (3) days in the aggregate; (vi) (vi) provide, at least three (3) Business Days prior to the Acceptance Time, all documentation and other information about the Company and its Subsidiaries as is required by applicable “know your customer” and anti-money laundering and anti-corruption rules and regulations, including the USA PATRIOT Act, to the extent reasonably requested by any Financing ~~Letter)~~Source at least ten (10) Business Days prior to the anticipated Acceptance Time; (vii) cooperate with Parent’s and Buyer’s legal counsel in connection with any legal opinions that may be required to be delivered in connection with the Financing; (viii) cooperate with Parent, ~~whether for debt~~Buyer and any Financing Sources to ensure that, ~~equity~~ to the extent practicable and appropriate, any syndication efforts in connection with the Financing benefit from the Company’s and its Subsidiaries’ existing financing relationships; (ix) supplement the written or ~~otherwise. Prior~~ formally presented information (other than projections and other forward looking materials and information of a general economic or industry specific nature) provided by the Company or its Subsidiaries to the extent such information contains any material misstatement of fact or omits to state any material fact necessary to make such information, taken as a whole, not misleading in any material respect as soon as reasonably practicable after gaining knowledge thereof; and (x) take any action or consummate any other transaction reasonably requested by Parent and Buyer, contingent upon the occurrence of the Closing, ~~Seller~~ that facilitates an efficient debt financing and security structure following the implementation of the Transaction. provided, that neither the Company nor any of its Subsidiaries nor any of their respective Affiliates or Representatives shall be required to take any of the following actions that is not contingent on the Closing: (A) pay any out-of-pocket fee or expense or incur any other material Liabilities for which the Company is not promptly reimbursed by Parent or Buyer, (B) pay any commitment or other fees, in each case, in connection with any Financing, (C) give any indemnities in connection with any Financing, (D) 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, (E) provide (i) any information the disclosure of which is prohibited or restricted under applicable Law or subject to legal privilege, or, subject to compliance by the parties with the 1933 Act or the 1934 Act, that is confidential or proprietary to the providing party or (ii) any information with respect to which the Company or any of its Subsidiaries owes a duty of confidentiality to a Third Party (it being understood, in that case, that the Company shall, to the extent permitted by such duty of confidentiality, inform Parent that it is not providing certain information as a result of such a duty and shall use reasonable best efforts to ~~cause each~~ obtain the consent of such third party to the Company’s and its Subsidiaries’ disclosure of such information to Parent, Buyer and its Financing Sources), (F) take any action that would conflict with or violate its organizational documents or any applicable Law or would conflict with or result in a violation or breach of, or default under, any material agreement to which the Company or any of its ~~Affiliates~~ Subsidiaries is a party, (G) adopt any resolution prior to the Closing or (H) take any action that would be reasonably expected to cause any director, officer or employee of the Company or any of its Subsidiaries to incur any personal liability. (b) Parent and Buyer 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, its Subsidiaries and its and their respective Representatives in connection with their respective obligations pursuant to this Section 7.07. Parent shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives, from and against any and all losses suffered or incurred by any of them in connection with any Financing and any information utilized in connection therewith (other than material misstatements or omissions in information provided by the Company or any of its Subsidiaries for use in any such Financing), except to the extent such losses were suffered or incurred as a result of the gross negligence or willful misconduct of the Company or any of its Subsidiaries. (c) The Company shall, and shall cause its Subsidiaries to, promptly deliver all notices, reasonably cooperate with Parent and take all other actions reasonably requested by Parent to facilitate the termination at, or, at the option of Parent, following, the Closing of all commitments in respect of all indebtedness of the Company and its Subsidiaries under the Revolving Facility Agreements, the repayment in full on, or, at the option of Parent, following, the Closing Date (or in the case of any letters of credit, cash collateralization, to the extent that Parent shall not have entered into an alternative arrangement with the issuing bank) of all obligations in respect of all such indebtedness under, and the release on, or, at the option of Parent, following, the Closing Date of any Liens securing all such indebtedness and guarantees in connection therewith. In furtherance and not in limitation of the foregoing, the Company and its Subsidiaries shall use reasonable best efforts and shall reasonably cooperate with Parent to ~~provide~~ obtain and deliver to ~~Buyer such cooperation reasonably requested by Buyer and reasonably required in connection with the Financing or the Alternate Financing, including~~ Parent at least two (2) Business Days prior to the extent reasonably requested and reasonably required): (i) participating in a customary and reasonable number of meetings, presentations, due diligence sessions, drafting sessions, road shows and sessions Closing Date an executed conditional payoff letter with rating agencies; (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered or otherwise) and similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii) as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer with (x) audited balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 respect to all such indebtedness (collectively, the “~~Carve-Out Financials~~Payoff Letter”); , in form and substance customary for transactions of this type, from the applicable agent on behalf of the Persons to whom such indebtedness is owed, each of which Payoff Letters together with any related release documentation shall, among other things, include the payoff amount and provide that Liens (~~iv) in addition to the information required pursuant to clause (iii~~and guarantees), ~~above~~if any, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with financial and other information regarding the Business and the Assets as may be reasonably requested by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities contemplated by the Financing, or as otherwise reasonably required granted in connection with the ~~Financing~~documents for the assets, rights and properties of the Company and its Subsidiaries securing such indebtedness shall, upon the payment of the amount set forth in the applicable Payoff Letter at or ~~as otherwise necessary in order~~ prior to ~~assist in receiving customary “comfort” (including “negative assurance” comfort~~the Closing, be released and terminated. The obligations of the Company pursuant to this Section 7.07(c) ~~from independent accountants in connection with the offering(s) of debt or equity securities contemplated by the Financing (~~shall be subject to Parent providing all funds required to effect all such ~~information in clause~~ repayments and cash collateralization of (~~iii~~or alternative arrangement with respect to) ~~and this clause~~ letters of credit at or prior to the Closing. (~~iv), including~~ d) At the ~~Carve-Out Financials~~request of Parent, the ~~“Required Information”);~~ Company shall, and shall cause its Subsidiaries to, issue at the time requested by Parent (v) providing information relating to the Business that is reasonably available to it to assist in the preparation of any credit agreements, indentures, 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 which time may be reasonably requested by Buyer; (vi) furnishing Buyer and their Financing sources as promptly as practicable all financial information required to be delivered pursuant to the Financing Letter and monthly financial statements for the Business (to the extent prepared in the ordinary course of business); (vii) assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Financing, as reasonably requested by Buyer; provided that (A) nothing herein shall require such cooperation to the extent it would require Seller or any of its Affiliates to waive or amend any terms of this Agreement, incur any Liabilities, pay any fees, reimburse any expenses, in each case, with respect to the Financing, prior to the Closing ~~for which~~ Date) one or more notices to effect the optional redemption or prepayment of all of the outstanding indebtedness set forth in Section 7.07(d) of the Company Letter in accordance with the terms of the applicable documents on (or, at the option of Parent, following) the Closing Date; provided, that no such notice shall be required to be sent unless it ~~has~~ can be conditioned on the occurrence of the Closing or can be revoked at no cost to the Company if the Closing does not ~~received~~ occur. The obligations of the Company pursuant to this Section 7.07(d) shall be subject to Parent providing all funds required to effect all such redemptions or repayments at or prior ~~reimbursement by~~ to the Closing. (e) Parent and Buyer acknowledge and agree that the obtaining of any Anticipated Financing or ~~on behalf of Buyer, or would cause Seller or any of its Affiliates to breach this Agreement or become unable to satisfy~~ Financing is not a condition to the Closing, (B) nothing herein shall require such cooperation from Seller or its Affiliates to the extent it would unreasonably interfere with the ongoing operations of Seller or its Affiliates and (C) there shall be no action, Liability or obligation of Seller or its Affiliates under any certificate, agreement, arrangement, document or instrument relating to the Financing. Notwithstanding anything to the contrary in this Section 6.10, neither Seller nor its Affiliates shall be in breach of the covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth herein. (b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement of the Financing, any other financing and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement. (c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii) and (iv) of Section 6.10(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 made therein, in the light of the circumstances under which they were made, not misleading.

Appears in 2 contracts

Sources: Purchase Agreement (InterXion Holding N.V.), Purchase Agreement (Digital Realty Trust, Inc.)

Financing Cooperation. (a) ~~For purposes of this Section 6.10, the term “Financing”~~ The Company shall ~~include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise. Prior to the Closing, Seller shall~~cooperate with Parent, and shall cause the Company Subsidiaries to and shall use commercially reasonable ~~best~~ efforts to cause ~~each~~ the respective directors, officers, accountants, consultants, legal counsel, advisors, agents and other representatives of ~~its Affiliates~~ the Company and ~~Representatives to~~the Company Subsidiaries to cooperate with the Parent Parties and Finance LLC, ~~use reasonable best efforts to provide to Buyer such cooperation~~ at the Parent Parties’ sole cost and expense, as reasonably requested by ~~Buyer and reasonably required~~ the Parent Parties in connection with the ~~Financing or~~ Debt Financing. Such cooperation shall include (without limitation) the ~~Alternate Financing, including (to the extent reasonably requested and reasonably required):~~ following: (i) ~~participating~~ reasonable participation in, and assistance with, customary marketing and syndication efforts related to the Debt Financing; (ii) assistance with the preparation of rating agency presentations, customary offering documents, confidential information memoranda (including a version that does not include material non-public information), private placement memoranda, high-yield offering prospectuses, lender presentations and other customary marketing materials, (iii) participation by appropriate members of senior management of the Company and the Company Subsidiaries in a ~~customary and~~ reasonable number of meetings, presentations, roadshows, due diligence ~~sessions,~~ sessions and drafting ~~sessions, road shows~~ and negotiation sessions with ~~rating agencies;~~ the Debt Financing Sources (~~ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered or otherwise)~~ including such meetings and ~~similar documents for the Financing, including execution and delivery of customary representation letters~~ presentations in connection with ~~an audit of~~ obtaining ratings in connection with the ~~Business~~ Debt Financing), (iv) delivery to Parent and ~~auditors comfort letter; (iii)~~ the Debt Financing Sources as promptly as reasonably ~~practical, and in no event later than March 31, 2013, furnishing Buyer with~~ practicable of (xwithout limitation) (A) audited consolidated balance sheets and related consolidated statements of operations, stockholders’ equity and cash flows of the Company for the ~~Business as~~ three most recently completed fiscal years ended at ~~December 31~~least 90 days prior to the Closing Date, ~~2011~~ (B) unaudited consolidated balance sheets and ~~2012, and (y) audited~~ related consolidated statements of ~~income~~ operations and cash flows for each interim fiscal quarter ended since the ~~Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days~~ last audited financial statements of the ~~end~~ Company and at least 45 days prior to the Closing Date, (C) lease operating statements and production reports with respect to the oil and gas properties of the ~~relevant~~ Company and the Company Subsidiaries as of the last day of the most recently completed fiscal ~~quarter, unaudited interim financial statements~~ year ended at least 90 days before the Closing Date and for each fiscal quarter ended at least 45 days before the Closing Date (including for the 12-month period ending ~~after January 1~~on the last day of the most recently completed four-fiscal quarter period for which lease operating statements and production reports are required to be delivered), ~~2013~~ (~~collectively~~D) a report, ~~the “Carve-Out Financials”); (iv)~~ prepared in ~~addition~~ accordance with SEC rules and regulations, with respect to the ~~information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer~~ proved Hydrocarbon reserves of the Company and the ~~other parties~~ Company Subsidiaries that is either prepared or audited by a third party petroleum engineer for the most recently completed fiscal year ended at least 90 days before the Closing Date and (E) information with respect to the ~~Financing Letter~~ Company and the Company Subsidiaries reasonably necessary for Parent to prepare a customary pro forma balance sheet and financial projections, (v) using commercially reasonable efforts to provide Parent with ~~financial~~ the Required Offering Information, and ~~other~~ identifying any portion of any such information that constitutes material non-public information regarding the ~~Business~~ Company or the Company Subsidiaries or their respective securities, (vi) using commercially reasonable efforts to obtain consents of accountants and reserve engineers for use of their reports in any materials relating to the ~~Assets~~ Debt Financing and accountants’ and reserve engineers’ “comfort” letters, as ~~may be~~ reasonably requested by ~~Buyer~~ ▇▇▇▇▇▇, (~~including~~ vii) executing and delivering (in ~~connection with Buyer’s preparation of pro forma financial statements~~escrow), ~~including unaudited interim financial statements, financial data, projections, audit reports and other information~~ immediately prior to the consummation of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities contemplated by the Debt Financing, ~~or as otherwise reasonably required in connection with~~ the Financing, or as otherwise necessary in order to assist in receiving customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt or equity securities contemplated by the Debt Financing ~~(all such information in clause (iii) and this clause (iv)~~Documents, including ~~the Carve-Out Financials, the “Required Information”); (v) providing information relating to the Business that is reasonably available to it to assist in the preparation of any~~ credit agreements, indentures, purchase agreements, ~~currency~~ pledge and security agreements and other similar or ~~interest hedging arrangements, other definitive financing~~ related documents, ~~officer’s certificates, customary closing documents, or other certificates or~~ provided that such documents ~~with respect~~ will not take effect prior to the Financing contemplated by the Financing as may be reasonably requested by Buyer; (vi) furnishing Buyer and their Financing sources as promptly as practicable all financial information required to be delivered pursuant to the Financing Letter and monthly financial statements for the Business (to the extent prepared in the ordinary course of business); (vii) assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are boundClosing; ~~and~~ (viii) ~~cooperating with Buyer~~ taking all actions reasonably desirable to permit the discharge in ~~its efforts to obtain accountants’ comfort~~ full as of the Closing of all Indebtedness set forth on Section 5.15(a) of the Company Disclosure Letter, ~~consents~~including obtaining customary payoff letters, ~~legal opinions~~lien terminations, ~~surveys, appraisals, engineering reports, environmental~~ releases of guaranties and other ~~inspections~~instruments of discharge to evidence that all such Indebtedness shall have been paid in full, ~~title insurance~~ all commitments to lend terminated and ~~other documentation and items relating to~~ all liens securing such Indebtedness encumbering any of the ~~Financing, as reasonably requested by Buyer; provided that (A) nothing herein shall require such cooperation to the extent it would require Seller~~ Company’s or any of its ~~Affiliates~~ Subsidiaries’ assets shall have been released, together with duly executed recordable releases and terminations with respect to ~~waive~~ any and all such liens; (ix) providing reasonable assistance in connection with (A) the novation or ~~amend~~ other assumption of the Company’s and its subsidiaries’ hedge agreements as required by the Commitment Letter and (B) the preparation of the information required for any ~~terms~~ Closing Date Borrowing Base Redetermination Reserve Report (as defined in the Commitment Letter) as required by the Commitment Letter; and (x) providing documentation and other information reasonably requested by Parent or the Debt Financing Sources or required by regulatory authorities in order for any Debt Financing Source to comply with requirements of ~~this Agreement~~any applicable “know your customer” and anti-money laundering rules and regulations, ~~incur any Liabilities~~including, ~~pay any fees~~without limitation, ~~reimburse any expenses~~the PATRIOT Act (as defined in the Commitment Letter) and regulations pertaining to beneficial ownership of legal entity customers, in each case, ~~with respect~~ as they may relate to the ~~Financing~~Company, the Company Subsidiaries or their respective assets, which in any event shall be provided at least five (5) Business Days prior to the Closing for which it has not received prior reimbursement by or on behalf of Buyer, or would cause Seller or any of its Affiliates to breach this Agreement or become unable to satisfy a condition to the Closing, (B) nothing herein shall require such cooperation from Seller or its Affiliates Date to the extent requested at least eight (8) Business Days prior to the Closing Date. Notwithstanding any other provision set forth herein, the Company and the Company Subsidiaries agree that the Parent Parties may share the information provided under this paragraph with the Debt Financing Sources and potential Debt Financing Sources in connection with any marketing efforts in connection with the Debt Financing, so long as all such parties are party to or otherwise subject to confidentiality obligations substantially comparable to such obligations set forth in the Confidentiality Agreement or otherwise reasonably satisfactory to the Company (it ~~would~~ being understood for the avoidance of doubt that the reasonable and customary processes of sharing a customary offering memorandum with potential investors for a Rule 144A and/or Regulation S offering of debt securities shall be deemed to be reasonably satisfactory). Notwithstanding the foregoing, such requested cooperation shall not unreasonably interfere with the ongoing operations of ~~Seller~~ the Company and the Company Subsidiaries, and the Company and the Company Subsidiaries shall not be required to pay any commitment or ~~its Affiliates~~ other similar fee or make any other payment or incur any other liability or obligation in connection with the Debt Financing. Furthermore (I) nothing in this Agreement shall require the Company and the Company Subsidiaries to cause the delivery of (1) any legal opinions or any representation or reliance letters (except any customary representation and authorization letters and customary management representation letters required by the Company’s independent auditors in connection with delivery of “comfort” letters), (2) any solvency certificates, (3) any pro forma financials or (4) any other financial information in form or substance not customarily prepared by the Company and the Company Subsidiaries with respect to such period (excluding, for the avoidance of doubt, the Required Offering Information), (II) neither the Company nor any of the Company Subsidiaries nor any of their respective officers, directors, or employees shall be required to execute or enter into or perform any agreement with respect to the Debt Financing that is not contingent on the Closing or that would be effective prior to the Closing, (III) Persons who are on the board of directors or the board of managers (or similar governing body) of the Company or the Company Subsidiaries prior to the Closing in their capacity as such shall not be required to pass resolutions or consents to approve or authorize the execution of the Debt Financing, in each case, that are not contingent on the Closing or that would be effective prior to the Closing, (IV) neither the Company nor any of the Company Subsidiaries shall be required to take any action that will conflict with or violate their formation or organizational documents or result in the contravention of, or that would reasonably be expected to result in a violation or breach of or default (with or without notice, lapse of time or both) under, any applicable Law or material Contract (in each case, prior to the Closing) and (CV) ~~there~~ nothing in this Agreement shall require any cooperation to the extent that it would require providing access to or disclosing information reasonably be expected to threaten the loss of any attorney-client privilege or other applicable legal privilege of the Company or the Company Subsidiaries. (b) None of the Company, the Company Subsidiaries or any of their respective Representatives shall be ~~no action~~required to take any action that would subject such Person to liability or to pay any commitment or other similar fee or make any other payment or incur any other liability in connection with the Debt Financing or their performance of their respective obligations under this Section 5.15 or any information utilized in connection therewith, ~~Liability~~ in each case, that is not reimbursable by Parent (other than customary authorization letters). Parent shall indemnify and hold harmless the Company, the Company Subsidiaries and their respective affiliates and Representatives from and against any and all losses, liabilities, claims, damages, reasonable and documented out-of-pocket costs and reasonable and documented out-of-pocket expenses (including reasonable and documented out-of-pocket fees and expenses of counsel) suffered or ~~obligation~~ incurred by them in connection with the arrangement of ~~Seller~~ the Debt Financing and the performance of their respective obligations under this Section 5.15 and any information (other than with respect to information furnished by or ~~its Affiliates under any certificate, agreement, arrangement, document or instrument relating~~ on behalf of the Company and the Company Subsidiaries for use in connection with the Debt Financing) utilized in connection therewith (other than to the ~~Financing~~extent such loss, liability, claim, damage, cost or expense arises from the bad faith, gross negligence or willful misconduct of the Company, the Company Subsidiaries, any of their respective affiliates or any of their respective Representatives). Parent shall, promptly upon written request of the Company, reimburse the Company, the Company Subsidiaries or their affiliates, as the case may be, for all reasonable and documented out-of-pocket costs and expenses incurred by the Company, its Subsidiaries or their respective Affiliates in connection with the cooperation required by this Section 5.15. (c) Notwithstanding anything to the contrary ~~in this Section 6.10~~herein, ~~neither Seller nor its Affiliates shall be in breach of~~ the ~~covenant~~ condition set forth in ~~this~~ Section ~~6.10 if~~ 6.2(a) as it has acted in good faith to comply with the cooperation and assistance set forth herein. (b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement of the Financing, any other financing and/or the provision of information utilized in connection therewith applies to the ~~fullest extent permitted by applicable Legal Requirement.~~ Company’s obligations under Section 5.15(a), shall be deemed satisfied unless (ci) ~~Seller will use~~ the Company has failed to satisfy its obligations under Section 5.15(a) in any material respect, (ii) Parent has notified the Company of such failure in writing a reasonably sufficient amount of time prior to the Closing Date to afford the Company with a reasonable ~~best efforts~~ opportunity to ~~update Required Information provided to Buyer pursuant to clauses~~ cure such failure and (iii) such failure has been a proximate cause of Parent’s failure to receive the proceeds of any financing. Parent acknowledges and agrees that obtaining any financing is not a condition to its obligations under this Agreement. If any financing (ivincluding any Debt Financing) ~~of Section 6.10(a)~~ has not been obtained, Parent shall continue to be obligated, until such time as ~~may be necessary such that~~ this Agreement is terminated in accordance with Article VII and subject to the ~~Required Information does not contain any untrue statement of material fact~~ waiver or ~~omit to state any material fact necessary in order to make the statements made therein, in the light~~ fulfillment of the ~~circumstances under which they were made~~conditions set forth in Article VI, ~~not misleading~~to complete the transactions contemplated by this Agreement.

Appears in 2 contracts

Sources: Merger Agreement (Crescent Energy Co), Merger Agreement (Silverbow Resources, Inc.)

Financing Cooperation. (a) For purposes of this Section 6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise. Prior to the Closing, Seller Company shall, and shall ~~use reasonable best efforts to~~ cause ~~each of~~ the Company Subsidiaries to, and shall cause its ~~Affiliates~~ and their Representatives to, ~~use reasonable best efforts to~~ provide ~~to Buyer such~~ all cooperation reasonably requested by ~~Buyer and~~ Parent in connection with financing arrangements (including assumptions, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations or prepayments of existing financing arrangements, as well as any cooperation in relation to matters that are customary in connection with a concurrent or subsequent offering of Parent’s debt securities) as Parent may reasonably ~~required~~ determine necessary or advisable in connection with the ~~Financing~~ completion of the Merger or the ~~Alternate Financing, including (~~other transactions contemplated hereby; provided that Parent shall control all decisions with respect to such financing arrangements. Such cooperation by Company and the ~~extent reasonably requested and reasonably required):~~ Company Subsidiaries shall include (i) ~~participating~~ causing the Company’s senior management teams to participate in a ~~customary and~~ reasonable number of meetings, presentations, drafting sessions, due diligence sessions, ~~drafting sessions,~~ “road ~~shows~~ shows” and sessions with rating ~~agencies;~~ agencies in connection with such financing arrangements, (ii) ~~assisting~~ providing reasonable and timely assistance with the preparation of materials for ~~rating agency~~ presentations, offering ~~documents, private placement~~ memoranda, prospectuses, bank ~~information memoranda~~books, ~~prospectuses (registered or otherwise)~~ ratings agency presentations and similar documents ~~for the Financing, including execution and delivery of customary representation letters~~ required in connection with ~~an audit of the Business and auditors comfort letter;~~ such financing arrangements, (iii) as promptly as reasonably practical, furnishing Parent and ~~in no event later than March 31, 2013, furnishing Buyer~~ any of its financing sources with (xA) audited consolidated balance sheets ~~for the Business as at December 31, 2011~~ and ~~2012, and (y)~~ related audited consolidated statements of operations, comprehensive income (loss), changes in equity and cash flows for ~~the Business for~~ each of the three most recently completed fiscal years of Company ended at least sixty (360) ~~years ended December 31~~days prior to the Closing Date, ~~2012~~ in each case, prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year and (zB) ~~within forty~~unaudited consolidated balance sheets and related condensed consolidated statements of operations, comprehensive income, changes in equity and cash flows (in each case, subject to normal year-~~five~~ end adjustments and absence of footnotes) for Company for each subsequent fiscal quarter ended at least forty (4540) days of prior to the ~~end of~~ Closing Date (other than the ~~relevant fiscal quarter, unaudited interim financial statements for each~~ fourth fiscal quarter ~~ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii~~of any fiscal year), ~~above~~in each case, ~~as promptly as reasonably practical~~prepared in accordance with GAAP and reviewed by Company’s independent public accountants, ~~furnishing Buyer~~ and ~~the other parties to the Financing Letter with financial and~~ (C) any other information regarding ~~the Business~~ Company and ~~the Assets as~~ its Subsidiaries that Parent may be reasonably ~~requested by Buyer (including~~ request in connection with ~~Buyer’s~~ the arrangement or execution of such financing arrangements, including information necessary for the preparation of pro forma financial statements), (iv) securing the customary cooperation of the independent accountants of the Company, including ~~unaudited interim financial statements~~by requesting that such independent accountants provide customary authorization letters, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities 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” comfort letters (including “negative assurance” comfort) ~~from independent accountants in connection with the offering(s) of debt or equity securities contemplated~~ and accountants’ consent letters as may be requested by ~~the Financing (all such information in clause (iii) and this clause (iv)~~Parent, ~~including the Carve-Out Financials, the “Required Information”);~~ (v) ~~providing information relating~~ cooperating with Parent and Parent’s counsel so that Parent or Parent’s counsel is able to the Business that is reasonably available to it to assist in the preparation of any credit agreements, indentures, 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 Buyer; (vi) furnishing Buyer and their Financing sources as promptly as practicable all financial information deliver legal opinions required to be delivered ~~pursuant to the Financing Letter~~ in connection with Parent’s financing arrangements, and ~~monthly financial statements for the Business~~ (vi) to the extent ~~prepared~~ requested in writing at least fifteen (15) Business Days prior to the ~~ordinary course of business);~~ Closing, delivering at least five (~~vii~~5) ~~assisting Buyer~~ Business Days prior to ~~obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which~~ the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental Closing all documentation and other ~~inspections~~information with respect to Company and the Company Subsidiaries that are required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, ~~title insurance~~ including the USA PATRIOT Act. Notwithstanding the foregoing, the Company and its Subsidiaries and their respective Representatives shall not be required to enter into any letter, certificate, document, agreement or instrument (other ~~documentation~~ than customary authorization and ~~items relating to~~ representation letters) the ~~Financing, as reasonably requested by Buyer; provided that (A~~effectiveness of which is not expressly conditioned on the occurrence of and nothing in this Section 7.16(a) ~~nothing herein~~ shall require (x) such cooperation to the extent it would ~~require Seller~~ disrupt unreasonably the business or operations of the Company or any Company Subsidiary or require any of ~~its Affiliates~~ them to ~~waive~~ take any actions that would be reasonably expected to violate applicable Law, contract or ~~amend~~ Organizational Documents, (y) the board of directors or similar governing body of the Company or any ~~terms of this Agreement~~Company Subsidiary to adopt resolutions approving any letter, certificate, document, agreement or instrument (other than customary authorization and representation letters to the extent necessary) that will be effective prior to the Closing or (z) Company or any Company Subsidiary to incur any ~~Liabilities, pay any fees, reimburse any expenses, in each case, with respect to the Financing,~~ liability prior to the Closing for which it has not otherwise received prior reimbursement or is not otherwise indemnified by or on behalf of ~~Buyer~~Parent. It is understood and agreed that a failure to consummate a financing of the type described in the first sentence of this Section 7.16(a) shall not, ~~or would cause Seller or any~~ in and of ~~its Affiliates to breach this Agreement or become unable~~ itself, constitute a failure by Company to satisfy ~~a condition to the Closing, (B) nothing herein shall require such cooperation from Seller or~~ its ~~Affiliates to the extent it would unreasonably interfere with the ongoing operations of Seller or its Affiliates and (C) there shall be no action, Liability or obligation of Seller or its Affiliates~~ obligations under ~~any certificate, agreement, arrangement, document or instrument relating to the Financing. Notwithstanding anything to the contrary in~~ this Section ~~6.10, neither Seller nor its Affiliates shall be in breach of the covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth herein~~7.16(a). (b) ~~Buyer~~ Company shall, and shall ~~indemnify~~ cause the ~~Seller Indemnitees from~~Company Subsidiaries to, ~~against~~ use reasonable best efforts to, as soon as reasonably practicable after (and not prior to) the receipt of a written request from Parent to do so, on the terms and conditions specified by Parent and in ~~respect~~ compliance with all applicable terms and conditions of the applicable Company Debt Agreement, seek any amendment to or waiver or consent under any of the Company Debt Agreements or pursue any approach chosen by Parent to the assumption, defeasance, satisfaction and discharge, constructive satisfaction and discharge, refinancing, repayment, repurchase, redemption, termination, amendment, guarantee, purchase, unwinding or other treatment of, the Company Debt Agreements and the indebtedness incurred pursuant thereto, in each case, subject to the occurrence of the Closing (any such transaction, a “Debt Transaction”). Company shall use reasonable best efforts to, and shall cause the Company Subsidiaries to use reasonable best efforts to, cause its and their respective Representatives to provide cooperation and assistance reasonably requested by Parent in connection with the Debt Transactions (including taking all corporate action reasonably necessary to authorize the execution and delivery of any ~~Losses imposed on~~documentation necessary or desirable in connection with such Debt Transaction (collectively, ~~sustained~~the “Debt Transaction Documents”) to be entered into prior to Closing and delivering all officer’s certificates and legal opinions required to be delivered in connection therewith); provided, that the effectiveness of any such Debt Transaction Documents or, in the case of a notice of prepayment or redemption, such prepayment or redemption, shall be expressly conditioned on the Closing unless otherwise mutually agreed by the Parties. (c) All material non-public or otherwise confidential information regarding Company obtained by Parent or any of their respective Representatives pursuant to this Section 7.16 shall be kept confidential in accordance with the Confidentiality Agreement; provided that Company agrees that Parent may (i) share non-public or otherwise confidential information with the rating agencies and actual or potential financing sources if the recipients of such information agree to customary confidentiality arrangements, including customary “click through” confidentiality agreements and confidentiality provisions contained in customary bank books and offering memoranda. Parent shall indemnify, defend and hold harmless Company and its Affiliates, and its and their respective pre-Closing Representatives, from and against any liability, obligation or loss suffered or incurred by them in connection with any cooperation provided under this Section 7.16 and any information utilized in connection therewith, except in the event such liabilities, obligations or ~~suffered by~~losses arose out of or result from (i) information furnished in writing by or on behalf of Company, its Subsidiaries or ~~asserted against~~its or their respective Affiliates or Representatives for use in connection with the debt financing, (ii) the bad faith, gross negligence or willful misconduct by Company, any of ~~them~~its Subsidiaries or any of its or their respective Affiliates or Representatives or (iii) the material breach by Company or its Subsidiaries of its or their obligations under this Agreement (clauses (i) through (iii) collectively, ~~directly~~ the “Indemnity Exceptions”). Parent shall, promptly upon request by Company, reimburse Company and its Subsidiaries and Representatives for all reasonable, documented and invoiced out-of-pocket costs actually incurred by Company or ~~indirectly relating to~~its Subsidiaries in connection with any cooperation provided under this Section 7.16 (including reasonable, documented out-of-pocket auditor’s and attorneys’ fees and expenses, but excluding the costs of Company’s preparation of its annual quarterly and financial statements and any other information or data and excluding costs arising out of or resulting from the ~~arrangement~~ Indemnity Exceptions). Company shall, and shall cause its Subsidiaries to deliver all notices and take all other actions to facilitate the termination at the Effective Time of all financing commitments and other indebtedness of Company or its Subsidiaries to be paid off, discharged and terminated on the Closing Date as specifically requested by Parent in writing (the “Payoff Indebtedness”), the repayment in full on the Closing Date of all obligations in respect of the ~~Financing~~indebtedness thereunder, and the release on the Closing Date of any ~~other financing and/or the provision of information utilized~~ Liens securing such indebtedness and guarantees in connection ~~therewith to~~ therewith. In furtherance and not in limitation of the ~~fullest extent permitted by applicable Legal Requirement. (c) Seller will~~ foregoing, Company and its Subsidiaries shall use ~~its~~ reasonable best efforts to ~~update Required Information provided~~ deliver to ~~Buyer pursuant~~ Parent (i) at least ten (10) Business Days prior to ~~clauses~~ the Closing Date (~~iii~~or such short period as agreed by Parent), a draft payoff letter (the “Payoff Letters”) with respect to the Payoff Indebtedness to be paid off, discharged and terminated on the Closing Date and (ii) at least one (1) Business Day prior to the Closing Date, an executed payoff letter with respect to Company’s credit facility (the “Payoff Letters”) and such other indebtedness (including mortgages) of Company or its Subsidiaries to be paid off, discharged and terminated on the Closing Date, in each case in form and substance reasonably satisfactory to Parent and customary for transactions of this type, from the Persons (or the applicable agent on behalf of the Persons) to whom such indebtedness is owed, which Payoff Letters together with any related release documentation shall, among other things, (x) include the payoff amount (including customary per diem) and (ivy) provide that Liens (and guarantees), if any, granted in connection with such Payoff Indebtedness relating to the assets, rights and properties of ~~Section 6.10(a) as may be necessary~~ Company and its Subsidiaries securing or relating to such ~~that~~ indebtedness, shall, upon the ~~Required Information does not contain any untrue statement~~ payment of ~~material fact or omit to state any material fact necessary in order to make~~ the ~~statements made therein,~~ amount set forth in the ~~light of~~ applicable Payoff Letter at or prior to the ~~circumstances under which they were made~~Effective Time, ~~not misleading~~be released and terminated.

Appears in 2 contracts

Sources: Merger Agreement (Kite Realty Group, L.P.), Merger Agreement (Retail Properties of America, Inc.)

Appears in 2 contracts

Sources: Merger Agreement (United Rentals North America Inc), Merger Agreement (Neff Corp)

Financing Cooperation. (a) ~~For purposes of this Section 6.10~~During the Interim Period, the ~~term “Financing”~~ Plains Parties shall ~~include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise. Prior~~ use commercially reasonable efforts to ~~the Closing, Seller shall~~provide, and shall use commercially reasonable ~~best~~ efforts to cause ~~each of~~ their respective Representatives to provide, to Oryx and its Affiliates ~~and Representatives to, use reasonable best efforts to provide to Buyer such~~ all cooperation reasonably requested ~~by Buyer and reasonably required~~ in connection with obtaining, arranging, marketing and syndicating the ~~Financing or the Alternate~~ Debt Financing, including using commercially reasonable efforts with respect to: (i) participation by senior management of the Plains Parties in not more than (x) two lender or investor meetings and (y) one ratings agency meeting for each ratings agency that is assigning a rating to the Debt Financing, in each case, at such times and locations as to be mutually agreed; (ii) delivering to Oryx and its Financing Sources, as promptly as reasonably practicable, such financial statements and financial, operational or other information or data relating to the Plains Parties or the Plains Permian Assets to the extent reasonably requested and reasonably required): (i) participating in a customary and reasonable number of meetings, presentations, due diligence sessions, drafting sessions, road shows and sessions with rating agencies; (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered or otherwise) and similar documents for the Financing, including execution and delivery of customary representation letters by Oryx in connection with ~~an audit~~ the Debt Financing and customary with respect thereto, including the (A) Plains Audited Financial Statements and (B) the audited consolidated balance sheet and the related statement of income of the ~~Business~~ Plains Permian Assets as of and ~~auditors comfort letter;~~ for the period ended December 31, 2021, to be delivered no later than April 30, 2022, unless Closing has occurred prior to April 30, 2022; and (iii) provide documentation and other information reasonably requested by Oryx or the Financing Sources as ~~promptly as reasonably practical~~required under applicable “know-your-customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and beneficial ownership regulations, which in no any event ~~later than March 31~~shall be provided at least four Business Days prior to the Closing Date to the extent requested at least nine Business Days prior to the Closing Date. The Plains Parties shall deliver to Oryx and its Financing Sources, ~~2013, furnishing Buyer with~~ an unaudited consolidated balance sheet and summary of unaudited interim operating results for the Plains Permian Assets for each fiscal quarter that ends both (x) ~~audited balance sheets for the Business as at December 31~~after April 1, ~~2011 and 2012,~~ 2021 and (y) ~~audited statements of income and cash flows for~~ at least 60 days prior to the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectivelyClosing Date. Notwithstanding any other provision set forth herein, the ~~“Carve-Out Financials”); (iv) in addition~~ Plains Parties agree that they will share customary projections contained within any budget related to the ~~information required pursuant to clause (iii)~~Company Parties, ~~above, as promptly as reasonably practical, furnishing Buyer~~ and ~~the other parties to~~ that Oryx may share such customary projections with the Financing Sources identified in the Debt Commitment Letter (and that such Financing Sources may share such information with ~~financial and~~ other ~~information regarding the Business and the Assets as may be reasonably requested by Buyer (including~~ potential Financing Sources in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities contemplated by the Financing, or as otherwise reasonably required any marketing efforts in connection with the Debt Financing). Notwithstanding the foregoing, such requested cooperation shall not (1) unreasonably interfere with the ongoing operations of the Plains Parties, (2) require the Plains Parties to pay any commitment or ~~as otherwise necessary in order to assist in receiving customary “comfort” (including “negative assurance” comfort) from independent accountants~~ other similar fee or make any other payment or incur any other liability or obligation in connection with the offering(s) of debt or equity securities contemplated by the Financing (all such information in clause (iii) and this clause (iv), including the Carve-Out Financials, the “Required Information”); (v) providing information relating to the Business that is reasonably available to it to assist in the preparation of any credit agreements, indentures, 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 Buyer; (vi) furnishing Buyer and their Financing sources as promptly as practicable all financial information required to be delivered pursuant to the Financing Letter and monthly financial statements for the Business (to the extent prepared in the ordinary course of business); (vii) assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Debt Financing, ~~as reasonably requested by Buyer; provided that~~ (A3) ~~nothing herein shall~~ require ~~such cooperation to~~ the ~~extent it would require Seller or any of its Affiliates~~ Plains Parties to waive or amend any terms of this Agreement, ~~incur~~ any ~~Liabilities~~organizational documents of the Plains Parties or any other Contract to which any of them is a party, ~~pay~~ (4) require the Plains Parties to make any ~~fees~~representation or warranty, ~~reimburse any expenses, in each case, with respect to~~ (5) require the ~~Financing, prior to the Closing for which it has not received prior reimbursement by or on behalf of Buyer~~execution and delivery of, or ~~would cause Seller or~~ require any of its Affiliates to breach this Agreement or become unable to satisfy a condition to the Closing, (B) nothing herein shall require such cooperation from Seller or its Affiliates to the extent it would unreasonably interfere with the ongoing operations of Seller or its Affiliates and (C) there shall be no action, ~~Liability~~ liability or obligation of ~~Seller or its Affiliates under~~ the Plains Parties under, any certificate, agreement, arrangement, document or instrument relating to the Debt Financing or (6) require any Person other than the obligors under the Debt Financing to issue any bank information memoranda or similar documents required in relation to the Debt Financing. The Plains Parties hereby consent to the reasonable use of the logos of the Plains Parties 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, disparage the Plains Parties or impair the goodwill of the Plains Parties. In no event shall the Plains Parties or any of their respective Affiliates be in breach of this Agreement because of the failure by the Plains Parties to deliver, after use of its commercially reasonable efforts to do so, any financial or other information that is not currently readily available to the Plains Parties. The Plains Parties and their respective representatives shall be given a reasonable opportunity to review and comment, in advance, on any marketing documents and other materials that are to be presented or discussed prior to or during any meetings conducted in connection with the Debt Financing that relate to the Plains Parties or the Plains Permian Assets. To the extent that Oryx intends to include any forecasts in the marketing materials for the Debt Financing (other than budget projections for the Company Parties), Oryx shall include a disclaimer that such forecasts do not represent the views of the Plains Parties. (b) Notwithstanding anything to the contrary in this Agreement, a breach by the Plains Parties of its obligations under Section ~~6.10, neither Seller nor its Affiliates~~ 6.15 shall ~~be in~~ not constitute a breach of this Agreement or a breach of the ~~covenant~~ condition precedent set forth in ~~this~~ Section ~~6.10 if it has acted in good faith~~ 7.3(b) unless such breach is a material breach and would reasonably be expected to ~~comply with~~ materially impair the ~~cooperation and assistance set forth herein~~availability of the Debt Financing. (bc) ~~Buyer~~ None of the Plains Parties or any of their respective Representatives shall be required to take any action that would subject such Person to liability or to pay any fee, reimburse any expenses, give any indemnity or make any other payment or incur any other liability in connection with, or in anticipation of, the Debt Financing or their performance of their respective obligations under this Section 6.15 or any information utilized in connection therewith, in each case, that is not reimbursable by Oryx. Oryx shall indemnify and hold harmless the ~~Seller Indemnitees from~~Plains Parties and their Affiliates and Representatives from and against any and all losses, ~~against~~ liabilities, claims, damages, reasonable and documented out-of-pocket costs and reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) suffered or incurred by them in ~~respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from~~ connection with the arrangement of the ~~Financing,~~ Debt Financing and the performance of their respective obligations under this Section 6.15 and any ~~other financing and/or the provision of~~ information utilized in connection therewith (other than to the ~~fullest~~ extent permitted by applicable Legal Requirement. (c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii) and (iv) of Section 6.10(a) as may be necessary such ~~that~~ loss, liability, claim, damage, cost or expense arises from the ~~Required Information does not contain any untrue statement of material fact~~ bad faith, gross negligence or ~~omit to state any material fact necessary in order to make the statements made therein, in the light~~ willful misconduct of the ~~circumstances under which they were made~~Plains Parties, ~~not misleading~~their Affiliates or any of their respective Representatives). Oryx shall, promptly upon written request of the Plains Parties, reimburse the Plains Parties or their Affiliates, as the case may be, for all reasonable and documented out-of-pocket costs and expenses incurred by the Plains Parties or their Affiliates (including those of its accountants, consultants, legal counsel, agents and other Representatives) in connection with the cooperation required by this Section 6.15.

Appears in 2 contracts

Sources: Merger Agreement (Plains All American Pipeline Lp), Merger Agreement (Plains Gp Holdings Lp)

Appears in 2 contracts

Sources: Merger Agreement (Grail, LLC), Merger Agreement (Grail, LLC)

Financing Cooperation. ~~(a) For purposes of this Section 6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise.~~ Prior to the ~~Closing~~Effective Time, ~~Seller~~ the Company shall, and shall cause the Company Subsidiaries to, and shall use its reasonable best efforts to cause ~~each of~~ its ~~Affiliates~~ and their Representatives to, ~~use reasonable best efforts to~~ provide ~~to Buyer such~~ all customary cooperation and all customary financial information, in each case, that is reasonably requested by ~~Buyer and reasonably required in connection with the Financing~~ Parent or the Alternate Financing, including (to the extent reasonably requested and reasonably required): (i) participating in a customary and reasonable number of meetings, presentations, due diligence sessions, drafting sessions, road shows and sessions with rating agencies; (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered or otherwise) and similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii) as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer with (x) audited balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with financial and other information regarding the Business and the Assets as may be reasonably requested by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities contemplated by the Financing, or as otherwise reasonably required Merger Sub in connection with the Financing, ~~or as otherwise necessary in order~~ including furnishing to ~~assist in receiving customary “comfort”~~ Parent (~~including “negative assurance” comfort~~i) ~~from independent accountants in connection with~~ audited consolidated balance sheets and related consolidated statements of operations, comprehensive income, stockholders’ equity and cash flows for the ~~offering(s~~Company for each of the three most recently completed fiscal years of the Company ended at least sixty (60) of debt or equity securities contemplated by the Financing (all such information in clause (iii) and this clause (iv), including the Carve-Out Financials, the “Required Information”); (v) providing information relating days prior to the ~~Business~~ Closing Date prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year and (ii) unaudited condensed consolidated balance sheets and related condensed consolidated statements of operations, comprehensive income and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for the Company for the fiscal quarter ended June 30, 2018 and each subsequent fiscal quarter ended on a date that is ~~reasonably available to it to assist~~ at least forty (40) days before the Closing Date, in ~~the preparation of any credit agreements~~each case, indentures, 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 Buyer; (vi) furnishing Buyer and their Financing sources as promptly as practicable all financial information required to be delivered pursuant to the Financing Letter and monthly financial statements for the Business (to the extent prepared in the ordinary course of business); (vii) assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Financing, as reasonably requested by Buyer; provided that (A) nothing herein shall require such cooperation to the extent it would ~~require Seller~~ not unreasonably interfere with the Company’s and the Company Subsidiaries’ business or operations. Notwithstanding anything to the contrary in this Section 7.13 and Section 7.14, neither the Company nor any Company Subsidiary shall pursuant to this Section 7.13 or Section 7.14 (I) be required to incur any fees, expenses or other liabilities prior to the Effective Time for which it is not previously or promptly reimbursed or simultaneously indemnified, (II) be required to cause any director, officer, member, partner, accountant, legal counsel, employee or other Representative of the Company or any ~~of its Affiliates~~ Company Subsidiary to take any action that would reasonably be expected to result in such Person incurring any personal liability, (III) be required to waive or amend any terms of this Agreement, ~~incur~~ (IV) be required to provide any ~~Liabilities~~information that is prohibited or restricted from being provided by applicable Law or contractual obligation existing as of the date hereof or is legally privileged (provided, ~~pay~~ however, that the Company shall use its commercially reasonable efforts to provide an alternative means of disclosing or providing such information to the maximum extent permitted by Law or such contractual obligation or to the maximum extent that does not result in a loss of such legal privilege, as applicable, and in the event that the Company or any ~~fees~~Company Subsidiary does not provide access or information in reliance on this clause, ~~reimburse~~ the Company shall provide notice to Parent that information is being withheld), (V) be required to, nor shall any ~~expenses~~of their directors, employees, officers, members, partners or managers be required to, adopt resolutions or consents to approve or authorize the execution of the agreements, documents and instruments pursuant to which the Financing is obtained or to execute, deliver or enter into, or perform any agreement, document or instrument (other than customary authorization letters or as set forth in Section 7.14), including any credit or other agreements, guarantees, pledge or security documents or certificates in connection with the Financing, in each case, that would be effective prior to the Effective Time and any such action, authorization, consent, approval, execution, delivery or performance will only be required of the respective directors, employees, officers, members, partners or managers of the Company and the Company Subsidiaries who retain their respective positions as of, and immediately after, the Effective Time (except in each case with respect to ~~the Financing~~customary authorization letters or as set forth in Section 7.14), (VI) be required to (or be required to cause their Representatives to) enter into or approve any 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 ~~Closing~~ Effective Time (except as set forth in Section 7.14), (VII) be required to (or be required to cause their Representatives to) provide any indemnity prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of ~~Buyer~~Parent, (VIII) be required to (or be required to cause their Representatives to) take any action that would conflict with or violate any charter or other organizational documents, (IX) be required to (or be required to cause their Representatives to) take any actions that would cause any representation or warranty in this Agreement to be breached by the Company or any Company Subsidiary or that would cause any condition set forth in Article VIII to fail to be satisfied (in each case unless Parent waives such breach or failure prior to the Company or any Company Subsidiary taking such action), (X) be required to (or be required to cause their Representatives to) prepare pro forma financial statements or any financial statements (other than those described in the first sentence of this Section 7.13(a)) that are not prepared in the ordinary course of its financial reporting practice, (XI) be required to (or be required to cause their Representatives to) deliver for inclusion in any syndication or offering materials any financial information with respect to a fiscal period that has not yet ended, or ~~would~~ (XII) be required to (or be required to cause ~~Seller~~ their Representatives to) provide opinions of internal or ~~any~~ external counsel (except as set forth in Section 7.14). All non-public or otherwise confidential information regarding the Company or the Company Subsidiaries obtained by Parent, Merger Sub or their respective Representatives pursuant to this Section 7.13(a) or by them otherwise from or on behalf of ~~its Affiliates to breach this Agreement or become unable to satisfy a condition to~~ the ~~Closing, (B) nothing herein~~ Company shall ~~require such cooperation from Seller or its Affiliates to the extent it would unreasonably interfere~~ be kept confidential in accordance with the ~~ongoing operations of Seller or its Affiliates and (C) there shall be no action~~Confidentiality Agreement; provided that, ~~Liability or obligation of Seller or its Affiliates under any certificate, agreement, arrangement, document or instrument relating to the Financing. Notwithstanding~~ notwithstanding anything to the contrary herein or in ~~this Section 6.10~~the Confidentiality Agreement, ~~neither Seller nor its Affiliates shall~~ such information may be ~~in breach~~ disclosed (i) to prospective lenders, underwriters, initial purchasers, dealer managers and agents during syndication and marketing of the covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth herein. (b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement Financing that enter into confidentiality arrangements customary for financing transactions of the ~~Financing, any other financing and/or~~ same type as the ~~provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement.~~ Financing (~~c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii~~including customary “click-through” confidentiality undertakings) and (ivii) on a confidential basis to rating agencies. Any reference in this Agreement to the “Financing” (other than in Section 5.6) shall include any financing that Parent, Merger Sub and/or other Subsidiaries of ~~Section 6.10(a) as may be necessary such that~~ Parent elects to obtain for the ~~Required Information does~~ purpose of financing the transactions contemplated hereby or any transaction undertaken in connection herewith, whether or not ~~contain any untrue statement of material fact or omit~~ pursuant to ~~state any material fact necessary in order to make~~ the ~~statements made therein, in the light of the circumstances under which they were made, not misleading~~Debt Commitment Letter.

Appears in 2 contracts

Sources: Merger Agreement, Agreement and Plan of Merger (Ca, Inc.)

Financing Cooperation. (a) For purposes of this Section 6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise. Prior to the Closing, Seller The Company shall, and shall ~~use reasonable best efforts to~~ cause ~~each of~~ the Company Subsidiaries to, and shall cause its ~~Affiliates~~ and their Representatives to, ~~use reasonable best efforts to~~ provide ~~to Buyer such~~ all cooperation reasonably requested by ~~Buyer and reasonably required~~ Parent in connection with any financing arranged by Parent or any of its Subsidiaries for the purpose of financing Parent’s or its Subsidiaries’ obligations in connection with the ~~Financing~~ completion of the Mergers or the ~~Alternate Financing~~other transactions contemplated hereby (including, ~~including (to~~ without limitation, the ~~extent reasonably requested~~ payment of fees and ~~reasonably required):~~ expenses in connection therewith and the repayment of any Indebtedness of Parent, the Company or any of their Subsidiaries in connection therewith). Such cooperation shall include (i) participating in a ~~customary and~~ reasonable number of meetings, ~~presentations,~~ presentations and due diligence ~~sessions~~sessions in connection with such financing arrangements, ~~drafting sessions, road shows and sessions with rating agencies;~~ (ii) ~~assisting~~ providing reasonable and timely assistance with the preparation of materials for ~~rating agency~~ presentations, offering ~~documents, private placement memoranda, bank information~~ memoranda, prospectuses ~~(registered or otherwise)~~ and similar documents ~~for the Financing, including execution and delivery of customary representation letters~~ required in connection with ~~an audit~~ such financing arrangements (including relating to the preparation of ~~the Business and auditors comfort letter;~~ pro forma financial statements), (iii) as promptly as reasonably practical, furnishing Parent and ~~in no event later than March 31, 2013, furnishing Buyer~~ any of its financing sources with (xA) audited consolidated balance sheets ~~for the Business as at December 31, 2011~~ and ~~2012, and (y)~~ related audited consolidated statements of operations, comprehensive income (loss), changes in equity and cash flows for each of the ~~Business~~ three most recently completed fiscal years of the Company ended at least sixty (60) days prior to the Closing Date, in each case, prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year and (B) unaudited consolidated balance sheets and related condensed consolidated statements of operations, comprehensive income, changes in equity and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for the Company for each subsequent fiscal quarter ended at least forty (40) days prior to the Closing Date (other than the fourth fiscal quarter of any fiscal year), in each case, prepared in accordance with GAAP and reviewed by the Company’s independent public accountants, and (C) any other information regarding the Company and the Company Subsidiaries that Parent may reasonably request in connection with the arrangement or execution of such financing, (iv) obtain customary authorization letters, comfort letters and accountants’ consent letters as may be requested by ▇▇▇▇▇▇ and (v) to the extent requested in writing at least ten (10) Business Days prior to the Closing, delivering at least three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition Business Days prior to the ~~information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with financial~~ Closing all documentation and other information regarding the Business and the Assets as may be reasonably requested by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities 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 “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt or equity securities contemplated by the Financing (all such information in clause (iii) and this clause (iv), including the Carve-Out Financials, the “Required Information”); (v) providing information relating to the Business that is reasonably available to it to assist in the preparation of any credit agreements, indentures, 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~~ Company and the Company Subsidiaries that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the ~~Financing as may be reasonably requested by Buyer; (vi~~USA PATRIOT Act. Notwithstanding the foregoing, nothing in this Section 7.15(a) ~~furnishing Buyer~~ shall require the Company, the Company Subsidiaries and their ~~Financing sources as promptly as practicable all financial information~~ respective Representatives shall not be required to enter into any letter, certificate, document, agreement or instrument (other than customary authorization and representation letters) that will be ~~delivered pursuant~~ effective prior to the ~~Financing Letter and monthly financial statements for the Business (~~Closing or to pay any commitment fee or other amount to any financing source prior to the ~~extent prepared~~ Closing and nothing in ~~the ordinary course of business); (vii~~this Section 7.15(a) assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Financing, as reasonably requested by Buyer; provided that (A) nothing herein shall require (x) such cooperation to the extent it would disrupt unreasonably the business or operations of the Company and the Company Subsidiaries, taken as a whole, or require ~~Seller~~ any of them to take any actions that would reasonably be expected to violate its organizational documents or (if such violation of law would be material and adverse to the interests of the Company) applicable Law or contract, (y) the board of directors or similar governing body of the Company or any ~~of its Affiliates~~ Company Subsidiary to ~~waive~~ adopt resolutions approving any letter, certificate, document, agreement or ~~amend~~ instrument (other than customary authorization and representation letters to the extent necessary) that will be effective prior to the Closing or (z) the Company or any ~~terms of this Agreement,~~ Company Subsidiary to incur any ~~Liabilities, pay any fees, reimburse any expenses, in each case, with respect to the Financing,~~ liability prior to the Closing for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of ~~Buyer~~Parent. Parent shall indemnify, defend and hold harmless the Company and its Affiliates, and its and their respective pre-Closing Representatives, from and against any liability, obligation or ~~would cause Seller~~ loss suffered or incurred by them in connection with any cooperation provided under this Section 7.15(a) and any information utilized in connection therewith, except in the event such liabilities, obligations or losses arose out of or result from (i) information furnished in writing by or on behalf of the Company, the Company Subsidiaries or its or their respective Affiliates or Representatives for use in connection with a transaction of the type described in the first sentence of this Section 7.15(a), (ii) the bad faith, gross negligence or willful misconduct by the Company, any of the Company Subsidiaries or any of its or their respective Affiliates to or Representatives or (iii) the material breach by the Company or the Company Subsidiaries of its or their obligations under this Agreement (clauses (i) through (iii) collectively, the “Indemnity Exceptions”). Parent shall, promptly upon request by the Company, reimburse the Company and the Company Subsidiaries and Representatives for all reasonable, documented and invoiced out-of-pocket costs actually incurred by the Company or ~~become unable to satisfy a condition to~~ the ~~Closing, (B) nothing herein shall require such~~ Company Subsidiaries in connection with any cooperation from Seller or its Affiliates to the extent it would unreasonably interfere with the ongoing operations of Seller or its Affiliates and (C) there shall be no action, Liability or obligation of Seller or its Affiliates provided under ~~any certificate, agreement, arrangement, document or instrument relating to the Financing. Notwithstanding anything to the contrary in~~ this Section ~~6.10~~7.15(a) (including reasonable, ~~neither Seller nor its Affiliates shall be in breach~~ documented out-of-pocket auditor’s and attorneys’ fees and expenses, but excluding the costs of the ~~covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation~~ Company’s preparation of its annual quarterly and ~~assistance set forth herein. (b) Buyer shall indemnify the Seller Indemnitees from, against~~ financial statements and ~~in respect of~~ any ~~Losses imposed on, sustained, incurred~~ other information or ~~suffered by, or asserted against, any of them, directly or indirectly relating to,~~ data and excluding costs arising out of or resulting from the ~~arrangement~~ Indemnity Exceptions). It is understood and agreed that a failure to consummate a financing of the ~~Financing~~type described in the first sentence of this Section 7.15(a) shall not, in and of itself, constitute a failure by the Company to satisfy its obligations under this Section 7.15(a). (b) The Company shall, and shall cause the Company Subsidiaries to, use reasonable best efforts to, as soon as reasonably practicable after (and not prior to) the receipt of a written request from Parent to do so, on the terms and conditions specified by Parent and in compliance with all applicable terms and conditions of the applicable Company Debt Agreement, seek an amendment or amendments to any of the Company Debt Agreements or pursue any approach chosen by Parent to (subject to the occurrence of the Closing) the assumption, defeasance, satisfaction and discharge, constructive satisfaction and discharge, refinancing, repayment, repurchase, redemption, termination, amendment, guarantee, purchase, unwinding or other treatment of, the Company Debt Agreements and the indebtedness incurred pursuant thereto, (any such transaction, a “Debt Transaction”). The Company shall not be required to take any action in respect of any Debt Transaction until Parent shall have provided the Company with drafts of any necessary documentation required in connection with such Debt Transaction in a form reasonably satisfactory to the Company (collectively, the “Debt Transaction Documents”) at least three (3) Business Days prior to the date of such requested action. The Company shall use reasonable best efforts to, and shall cause the Company Subsidiaries to use reasonable best efforts to, cause its and their respective Representatives to provide cooperation and assistance reasonably requested by Parent in connection with the Debt Transactions (including taking all corporate action reasonably necessary to authorize the execution and delivery of any Debt Transaction Documents to be entered into prior to Closing and delivering all officer’s certificates and legal opinions required to be delivered in connection therewith), provided, that nothing in this Section 7.15(b) shall require the Company to (i) enter into any such Debt Transaction Documents which are effective prior to Closing (other than (A) amendments to the terms of Company Debt Agreements to facilitate the consummation (at or following the Closing) of a Debt Transaction (provided that the Company shall not be required to enter into any such amendment if the terms are more restrictive to the Company than the applicable Company Debt Agreement as in effect prior to such amendment and such more restrictive terms are effective prior to or not conditioned upon the Closing) and any documents or instruments delivered in connection therewith) or (B) notices of prepayment or redemption that are expressly conditioned on the Closing) or (ii) to pay any amendment fee or other amount with respect to such Debt Transaction (except with respect to the Company’s outside counsel fees and any other ~~financing and/or the provision of information utilized in connection therewith~~ amount promptly reimbursed by Parent) prior to the ~~fullest extent permitted by applicable Legal Requirement~~Closing. (c) ~~Seller will~~ All material non-public or otherwise confidential information regarding the Company obtained by Parent or any of their respective Representatives pursuant to this Section 7.15 shall be kept confidential in accordance with the Confidentiality Agreement; provided that the Company agrees that Parent may (i) share non-public or otherwise confidential information with (x) rating agencies, (y) counterparties to Indebtedness of the Company, and (z) actual or potential financing sources if (in the case of this clause (z) the recipients of such information agree to customary confidentiality arrangements, including customary “click through” confidentiality agreements and confidentiality provisions contained in customary bank books and offering memoranda). (d) The Company shall, and shall cause the Company Subsidiaries to, deliver all notices and take all other actions to facilitate the termination at the Partnership Merger Effective Time of all financing commitments and other indebtedness of the Company or the Company Subsidiaries to be paid off, discharged and terminated on the Closing Date as specifically requested by Parent in writing (the “Payoff Indebtedness”), the repayment in full on the Closing Date of all obligations in respect of the indebtedness thereunder, and the release on the Closing Date of any Liens securing such indebtedness and guarantees in connection therewith. In furtherance and not in limitation of the foregoing, the Company and the Company Subsidiaries shall use ~~its~~ reasonable best efforts to ~~update Required Information provided~~ deliver to ~~Buyer pursuant~~ Parent (i) at least ten (10) Business Days prior to ~~clauses~~ the Closing Date (~~iii~~or such short period as agreed by Parent), a draft payoff letter with respect to the Payoff Indebtedness to be paid off, discharged and terminated on the Closing Date and (ii) at least one (1) Business Day prior to the Closing Date, an executed payoff letter with respect to the Company’s credit facility (together with the payoff letter contemplated by clause (i), the “Payoff Letters”) and such other indebtedness (including mortgages) of the Company or the Company Subsidiaries to be paid off, discharged and terminated on the Closing Date, in each case in form and substance customary for transactions of this type, from the Persons (or the applicable agent on behalf of the Persons) to whom such indebtedness is owed, which Payoff Letters together with any related release documentation shall, among other things, (x) include the payoff amount (including customary per diem) and (ivy) provide that Liens (and guarantees), if any, granted in connection with such Payoff Indebtedness relating to the assets, rights and properties of ~~Section 6.10(a) as may be necessary~~ the Company and the Company Subsidiaries securing or relating to such ~~that~~ indebtedness, shall, upon the ~~Required Information does not contain any untrue statement~~ payment of ~~material fact or omit to state any material fact necessary in order to make~~ the ~~statements made therein,~~ amount set forth in the ~~light of~~ applicable Payoff Letter at or prior to the ~~circumstances under which they were made~~Partnership Merger Effective Time, ~~not misleading~~be released and terminated.

Appears in 2 contracts

Sources: Merger Agreement (Kimco Realty Corp), Merger Agreement (RPT Realty)

Financing Cooperation. ~~(a) For purposes~~ Without limiting the generality of ~~this~~ Section ~~6.10~~5.4, ~~the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise. Prior~~ prior to the Closing, each Seller ~~shall,~~ and ~~shall use reasonable best efforts to cause~~ each of its Affiliates ~~and Representatives to~~shall, ~~use~~ on a timely basis, provide all reasonable ~~best efforts to provide to Buyer such~~ cooperation ~~reasonably~~ requested by Buyer ~~and reasonably required~~ or any lender, underwriter or other agent of Buyer or any of Buyer’s Affiliates which is customary in connection with the ~~Financing or the Alternate Financing, including (~~arrangement of debt financing for transactions that are substantially similar to the extent reasonably requested and reasonably required): (i) participating in a customary and reasonable number of meetings, presentations, due diligence sessions, drafting sessions, road shows and sessions with rating agencies; (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered or otherwise) and similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii) as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer with (x) audited balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with financial and other information regarding the Business and the Assets as may be reasonably requested by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities transactions 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 “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt or equity securities contemplated by the Financing (all such information in clause (iii) and this clause (iv), including the Carve-Out Financials, the “Required Information”); (v) providing information relating to the Business that is reasonably available to it to assist in the preparation of any credit agreements, indentures, 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 Buyer; (vi) furnishing Buyer and their Financing sources as promptly as practicable all financial information required to be delivered pursuant to the Financing Letter and monthly financial statements for the Business (to the extent prepared in the ordinary course of business); (vii) assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Financing, as reasonably requested by Buyer; provided that (A) nothing herein shall require such cooperation to the extent it would require Seller or any of its Affiliates to waive or amend any terms of this Agreement; provided, ~~incur any Liabilities~~however, ~~pay any fees, reimburse any expenses, in each case, with respect to the Financing, prior to the Closing for which it has~~ that such requested cooperation shall not received prior reimbursement by or on behalf of Buyer, or would cause Seller or any of its Affiliates to breach this Agreement or become unable to satisfy a condition to the Closing, (B) nothing herein shall require such cooperation from Seller or its Affiliates to the extent it would unreasonably interfere with the ongoing operations of the Business. Such cooperation by Sellers and their Affiliates shall, at the reasonable request of Buyer, include: (i) furnishing, or causing to be furnished, to Buyer or any lender, underwriter or other agent of Buyer or any of Buyer’s Affiliates the (1) audited balance sheets and related statements of income and cash flows of the Business for the fiscal years ended February 1, 2015, February 2, 2014, and prior fiscal years if applicable and (2) unaudited balance sheets and related statements of income and cash flows of the Business for each fiscal quarter of the Business ended after the close of its most recent fiscal year which are no more than 135 days old at Closing, in each case prepared in accordance with GAAP and reviewed by Sellers’ accountants (with such review (x) including a review of the financial statements of the Business for the corresponding period in the previous fiscal year and (y) being conducted in accordance with applicable accounting standards); (ii) using reasonable best efforts to secure the consent of any accountant of any Seller or any Affiliate of a Seller related to the financial statements described in this Section 5.19; (iii) using reasonable best efforts to secure a comfort letter or similar or related document from any accountant of any Seller or any Affiliate of a Seller which is customary in connection with financings of the type described in this Section 5.19; (iv) providing assistance to Buyer and its Affiliates in their preparation of customary rating agency presentations, road show materials, customary bank or co-investor information memoranda, bank syndication materials, credit agreements, offering memoranda and similar or related documents customarily prepared in connection with financings of the type described in this Section 5.19; and (Cv) ~~there~~ reasonably cooperating with any lender, underwriter or other agent of Buyer or any of Buyer’s Affiliates in an evaluation of the Business’s assets for the purpose of establishing collateral arrangements; provided that (a) neither HD Supply nor Sellers nor any of their respective Affiliates shall be required to pay any commitment or other similar fee in connection with any financing to be obtained by Buyer or any of Buyer’s Affiliates in connection with the transactions contemplated hereby, (b) the effectiveness of any documentation executed by any Purchased Company or any Seller with respect thereto, and the attachment of any Lien, shall be subject to the consummation of the Closing, (c) no ~~action, Liability~~ director or ~~obligation~~ officer of ~~Seller or its Affiliates under~~ any ~~certificate,~~ Purchased Company shall be required to execute any agreement, ~~arrangement~~certificate, document or instrument ~~relating~~ with respect to the Financing. Notwithstanding anything to the contrary in this Section 6.10, neither Seller nor its Affiliates shall be in breach of the covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth herein. (b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement of the Financing, any other financing and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement. (c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii) and (iv) of Section 6.10(a) as may be necessary such Financing 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 made therein, in the light of the circumstances under which they were made, not misleading.would be

Appears in 2 contracts

Sources: Purchase Agreement (Hd Supply, Inc.), Purchase Agreement (Anixter International Inc)

Appears in 2 contracts

Sources: Merger Agreement (Urstadt Biddle Properties Inc), Merger Agreement (Regency Centers Lp)

Financing Cooperation. (a) ~~For purposes of this Section 6.10~~Prior to and at the Effective Time, the ~~term “Financing”~~ Company shall, shall ~~include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise. Prior to the Closing, Seller shall~~cause its Subsidiaries to, and shall use commercially reasonable ~~best~~ efforts to cause ~~each~~ their respective Representatives to, provide such reasonable cooperation in connection with any debt and/or equity financing by Parent or any of its Affiliates ~~and Representatives to, use reasonable best efforts to provide to Buyer such cooperation reasonably requested by Buyer and reasonably required~~ in connection with the ~~Financing~~ Transactions (the “Financing”) as may be reasonably requested by Parent or its Representatives, including using commercially reasonable efforts to (i) promptly provide financial and other information regarding the ~~Alternate~~ Company and its Subsidiaries as may be reasonably requested by Parent and is reasonably necessary in order to consummate the Financing, including (~~to the extent reasonably requested and reasonably required): (i~~A)(1) participating in a customary and reasonable number of meetings, presentations, due diligence sessions, drafting sessions, road shows and sessions with rating agencies; (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered or otherwise) and similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit audited consolidated financial statements of the ~~Business and auditors comfort letter; (iii) as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer with (x) audited~~ Company consisting of balance sheets ~~for~~ as of the ~~Business as at December 31, 2011 and 2012, and (y) audited statements~~ last date of ~~income and cash flows for the Business for~~ each of the three (3) fiscal years of the Company ended ~~December 31~~at least ninety (90) days prior to the Closing Date and income statements and statements of stockholders’ equity and cash flows for each of the three (3) fiscal years of the Company ended at least ninety (90) days prior to the Closing Date and an unqualified audit report relating thereto, ~~2012~~ (2) unaudited consolidated financial statements of the Company consisting of balance sheets and ~~(z) within~~ income statements and statements of cash flows as of the last day of and for the most recently completed fiscal quarter ended at least forty-five (45) days before the Closing Date, or, in the case of the statement of cash flows, for the period from the beginning of the most recently completed fiscal year ended at least ninety (90) days before the Closing Date to the last day of the most recently completed fiscal quarter ended at least forty-five (45) days before the Closing Date (all of which shall have been reviewed by the independent accountants for the Company (as applicable) as provided in the Statement on Auditing Standards No. 100), in each case other than with respect to any quarter-end that is also a fiscal year-end, and (3) all financial information about the Company that is reasonably requested by Parent in writing and required in order to prepare (I) a pro forma consolidated statement of income of Parent and its Subsidiaries for the most recently completed fiscal year ended at least ninety (90) days before the Closing Date, (II) (X) a pro forma consolidated balance sheet of Parent and its Subsidiaries as of the last day of the most recently completed fiscal quarter ended at least forty-five (45) days before the Closing Date and (Y) a pro forma consolidated statement of income of Parent and its Subsidiaries for the period from the beginning of the most recently completed fiscal year ended at least ninety (90) days before the Closing Date to the last day of the most recently completed fiscal quarter ended at least forty-five (45) days before the Closing Date, together with, in the case of this clause (Y), a corresponding statement for the corresponding period of the prior year, and (III) a pro forma consolidated income statement for the twelve (12)-month period ended on the last day of the most recently completed fiscal quarter ended at least forty-five (45) days before the Closing Date, or, if the most recently completed fiscal period is the end of a fiscal year, ended at least ninety (90) days before the ~~relevant fiscal quarter~~Closing Date, ~~unaudited interim financial statements for~~ in each ~~fiscal quarter ending~~ case prepared after ~~January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition~~ giving effect to the ~~information required pursuant to clause~~ transactions described herein as if they had occurred as of such date (~~iii)~~in the case of each such balance sheet) or at the beginning of such period (in the case of each such statement of income) and, ~~above~~in each case, ~~as promptly as reasonably practical, furnishing Buyer and~~ meeting the other parties to the Financing Letter with financial and other information regarding the Business and the Assets as may be reasonably requested by Buyer (including in connection with Buyer’s preparation requirements of ~~pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by~~ Regulation S-X and ~~Regulation S-K of~~ (B) to the ~~Securities Act of 1933 for a registered public offering~~extent not already provided under clause (A), all financial statements and ~~of type~~ other financial data relating to the Company and ~~form customarily~~ its Subsidiaries that is reasonably requested in writing by Parent to be included in a complete printed preliminary prospectus or preliminary offering memorandum or preliminary private ~~placements under Rule 144A, to consummate the offering(s)~~ placement memorandum suitable for use in a customary road show for offerings of debt or equity securities ~~contemplated~~ by issuers similar to Parent (or any Affiliate thereof) which contains all financial statements and other financial data required to be included therein (including all audited financial statements, all unaudited financial statements (which shall have been reviewed by the ~~Financing~~independent accountants as provided in Statement on Auditing Standards No. 100) and all appropriate pro forma financial statements prepared in accordance with, or reconciled to, generally accepted accounting principles in the United States and prepared in accordance with Regulation S-X under the Securities Act of 1933, as amended, as if any such securities constituting a portion of the Financing were registered, unless otherwise ~~reasonably required~~ agreed), and all other data requested (including selected financial data) that the Securities and Exchange Commission would require in ~~connection with the Financing~~a registered offering of debt or equity securities issued by Parent or any Affiliate thereof, ~~or as otherwise~~ and that would be necessary in order to ~~assist in receiving~~ receive customary “comfort” (including “negative assurance” comfort) from independent accountants of Parent and the Company in connection with the ~~offering(s~~offering of such securities (and the Company shall arrange the delivery of such comfort with respect to such information) ~~of debt or equity securities contemplated by the Financing~~ (all such information specified in clause (~~iii~~A) ~~and this~~ or clause (ivB)~~, including the Carve-Out Financials~~, the “Required Information”); ; (ii) provide direct contact between (x) senior management and advisors, including auditors, of the Company and (y) the proposed lenders, underwriters, initial purchasers or placement agents, as applicable, and/or Parent’s or any of its Affiliate’s auditors in connection with, the Financing at reasonable times and locations as mutually agreed; (iii) assist reasonably with the preparation of offering materials, marketing materials and presentations (including a confidential offering memorandum); (iv) obtain the cooperation and assistance of counsel and accountants to the Company and its Subsidiaries in providing customary comfort letters, local counsel opinions and other services (it being understood and agreed that all legal opinions shall be provided by counsel to Parent or by local counsel to Parent or the Company, to the extent local counsel to the Company are willing to so provide such opinions); (v) ~~providing information relating~~ permit the reasonable use by Parent and its Affiliates of the Company’s and its Subsidiaries’ logos for syndication and underwriting, as applicable, of the Financing (subject to advance review of and consultation with respect to such use; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the business of the Subsidiaries or Affiliates or their marks); (vi) participate in a reasonable number of meetings (including meetings with lenders), road shows, due diligence sessions, drafting sessions and sessions with ratings agencies (including the participation in such meetings of the Company’s senior management); (vii) assist in procuring any necessary rating agency ratings or approvals; (viii) at Parent’s request, use commercially reasonable efforts to ensure that any syndication efforts with respect to such Financing benefit from the Company’s and its Subsidiaries’ existing lending relationships; (ix) facilitate the execution and delivery of definitive financing, pledge, security and guarantee documents and the provision of guarantees and security and the performance of the other obligations thereunder (which documents shall only be required to become effective, as to the ~~Business that is reasonably available~~ Company and its Subsidiaries, as of the Closing Date), (x) execute and deliver customary certificates (other than with respect to it to assist in the preparation of any credit agreements, indentures, purchase agreements, currency or interest hedging arrangements, other definitive financing documents, officer’s certificates, customary closing documentssolvency matters), or other ~~certificates or~~ documents ~~with respect~~ and instruments relating to ~~the Financing contemplated by~~ the Financing as may be reasonably requested by ~~Buyer;~~ Parent as necessary or customary in connection with the Financing (viincluding taking all corporate, limited liability company, partnership or other similar actions necessary to authorize such Financing), in each case effective as of the Closing; (xi) ~~furnishing Buyer~~ cooperate with due diligence efforts of Parent and its Affiliates and its and their ~~Financing sources as promptly as practicable all~~ financing sources, including by cooperating with consultants or others engaged to undertake field examinations and appraisals, including furnishing information to such persons in respect of accounts receivable, inventory and other applicable assets, (xii) assist, and use commercially reasonable efforts to cause their accountants to assist, Parent in the preparation of pro forma financial ~~information required~~ statements and (xiii) deliver to ~~be delivered pursuant~~ Parent, at least five (5) business days prior to the ~~Financing Letter~~ Closing Date, all documentation and ~~monthly financial statements for~~ other information relating to the ~~Business (~~Company and its Subsidiaries required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, in each case to the extent ~~prepared~~ requested by Parent from the Company in ~~the ordinary course of business);~~ writing at least nine (~~vii~~9) assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating business days prior to the ~~Financing, as reasonably requested by Buyer~~Closing Date; provided that ~~(A) nothing herein shall require such cooperation to~~ no obligations of the ~~extent it would require Seller~~ Company or any of its ~~Affiliates to waive~~ Subsidiaries under any certificate, document or ~~amend any terms of this Agreement, incur any Liabilities, pay any fees, reimburse any expenses, in each case, with respect to~~ instrument delivered by the ~~Financing, prior to the Closing for which it has not received prior reimbursement by or on behalf of Buyer, or would cause Seller~~ Company or any of its ~~Affiliates~~ Subsidiaries pursuant to ~~breach~~ this Section 4.13(a) (other than customary authorization or representation letters with respect to information regarding the Company and its Subsidiaries and their securities) shall be effective until the Effective Time. Notwithstanding anything to the contrary contained in the Confidentiality Agreement or ~~become unable~~ herein, Parent and its Subsidiaries and their Representatives shall be permitted to ~~satisfy a condition~~ disclose information as necessary and consistent with customary practices in connection with any Financing, subject to customary confidentiality arrangements. (b) The Company shall and shall cause its Subsidiaries to use reasonable best efforts to (i) at and conditioned upon the occurrence of the Closing deliver all notices and take all other actions required to facilitate the termination of commitments under the Credit Agreement, dated as of November 4, 2010 among the Company, as borrower, the banks from time to time party thereto and PNC Bank, National Association, as agent, as amended from time to time (the “Subject Indebtedness”), the repayment in full (or in the case of letters of credit, replacement or cash collateralization) of all obligations then outstanding thereunder and the release of all Liens in connection therewith on the Closing Date and (ii) deliver to Parent not later than two (2) business days prior to the ~~Closing,~~ Effective Time a customary payoff letter in respect of the Subject Indebtedness from all financial institutions and other persons (Bor the agents or trustees authorized to act on behalf thereof) ~~nothing herein shall require such cooperation from Seller or its Affiliates~~ parties to the ~~extent it would unreasonably interfere~~ Subject Indebtedness, together with appropriate executed lien release documentation, which payoff letter shall (x) indicate the total amount required to be paid to fully satisfy all principal, interest, prepayment premiums, penalties, breakage costs or other similar obligations related to such Indebtedness as of the Closing Date (the “Payoff Amount”) and (y) state that all obligations (including guarantees) in respect thereof (other than those contingent indemnification obligations that customarily remain following termination of a credit agreement) and Liens in connection therewith on the assets of the Company or any of its Subsidiaries shall be, substantially concurrently with the ~~ongoing operations~~ receipt of ~~Seller~~ the Payoff Amount on the Closing Date by the Persons holding such Indebtedness, released or ~~its Affiliates and (C) there~~ arrangements reasonably satisfactory to Parent for such release shall ~~be no action~~have been made by such time, ~~Liability or obligation of Seller or its Affiliates under any certificate~~subject, ~~agreement~~as applicable, ~~arrangement, document or instrument relating~~ to the ~~Financing~~replacement (or cash collateralization or backstopping) of any then-outstanding letters of credit or similar Indebtedness. Notwithstanding anything to the contrary in this ~~Section 6.10~~Agreement, ~~neither Seller nor its Affiliates shall be in breach~~ Parent and Merger Sub acknowledge and agree that the delivery of the ~~covenant set forth~~ payoff letter pursuant to this paragraph by the Company to Parent shall not be a condition to the Closing and the Offer and the Closing are not conditioned upon Parent receiving such payoff letter. In addition, the Company and its Subsidiaries shall use reasonable bests efforts to provide customary assistance in ~~this Section 6.10 if it has acted~~ connection with any offers to purchase and/or consent solicitations made (any such offer or consent solicitation, a “Debt Offer”), in ~~good faith to comply with the cooperation and assistance set forth herein. (b) Buyer shall indemnify the Seller Indemnitees from~~Parent’s discretion, ~~against and~~ by or on behalf of Parent, on terms determined by Parent in respect of the Company’s 7.25% Senior Notes due 2018 or 6.70% Senior Debentures due 2034 (collectively, the “Debt Securities”), provided that the closing of any ~~Losses imposed on~~Debt Offer shall be conditioned upon the Closing, ~~sustained~~and any proposed amendments to the Debt Securities pursuant to the Debt Offer shall become effective no earlier than the Closing Date (though documentation implementing such amendments on a conditional basis may become effective prior to the Closing Date), ~~incurred or suffered by~~which assistance shall include execution and delivery of any certificates to trustees and supplemental indentures provided, ~~or asserted against,~~ further; such assistance is limited to any ~~of them, directly or indirectly relating to, arising out of or resulting from the arrangement~~ Debt Offer of the ~~Financing, any other financing and/or the provision of information utilized in connection therewith~~ Debt Securities solely to the ~~fullest~~ extent ~~permitted~~ that any such consent solicitation or offer is (i) managed by ~~applicable Legal Requirement~~and paid for by Parent and (ii) not prohibited by Applicable Laws. Notwithstanding anything to the contrary in this Agreement, Parent and Merger Sub acknowledge and agree that no Debt Offer contemplated by this paragraph shall be a condition to the Closing and the Offer and the Closing are not conditioned upon any such Debt Offer. (c) ~~Seller will use~~ Notwithstanding anything in this Agreement to the contrary, in fulfilling its ~~reasonable best efforts to update Required Information provided to Buyer~~ obligations pursuant to ~~clauses~~ Sections 4.13(a) and (b), (i) none of the Company, its Subsidiaries or its Representatives shall be required to (A) pay any commitment or other fee or otherwise bear any cost or expense or make any other payment (other than reasonable out-of-pocket costs and expenses required to be reimbursed by Parent and Merger Sub) or incur any other liability in connection with the Financing or any Debt Offer prior to the Effective Time (other than non-contractual liabilities indemnified by Parent pursuant to this paragraph (c) and other than reasonable out-of-pocket costs and expenses required to be reimbursed by Parent and Merger Sub), (B) provide any indemnity, guarantee, pledge or security in connection with the Financing prior to the Effective Time, (ii) any requested cooperation shall not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries, (iii) none of the Company or its Subsidiaries or its Representatives shall be required to pass resolutions or consents or approve or authorize the execution of the Financing or the definitive financing agreement or deliver any certificates in connection therewith, provided that the Company and its Subsidiaries and Representatives shall cooperate with Parent to replace any officers and directors of the Company and its Subsidiaries who will not be employed thereby immediately after Closing with Persons designated by Parent and to add any officers and directors designated by Parent, such replacements and additions to become effective immediately at Closing, (iv) ~~of Section 6.10(a) as may be necessary such that~~ prior to 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 made therein~~Closing, ~~in the light~~ none of the ~~circumstances~~ Company, its Subsidiaries or its Representatives shall be required to execute any agreements or certificates in connection with the Financing, (v) without limiting their obligations under ~~which they were made~~Section 4.13(a)(i) and 4.13(a)(xii) above, ~~not misleading.~~none of the Company, its Subsidiaries or Representatives shall be responsible for any adjustments to any pro forma financial information required to be provided in accordance with the Commitment Letter or otherwise related to or used or prepared in connection with any Financing, and (vi) Parent shall, promptly upon request by the Company, reimburse the Company or cause the Company to be reimbursed for all reasonable and documented out-of-pocket costs and expenses incurred by the Company or any of its Subsidiaries in connection with such cooperation. Parent shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses or damages actually suffered or incurred by them directly in connection with the arrangement of any such financing and/or any Debt Offer (other than to the extent (x) related to information provided by the Company, its Subsidiaries or their respective Representativ

Appears in 2 contracts

Sources: Merger Agreement (XPO Logistics, Inc.), Merger Agreement (Con-Way Inc.)

Financing Cooperation. ~~(a) For purposes of this Section 6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise.~~ Prior to the ~~Closing~~Effective Time (or the earlier termination of this Agreement), ~~Seller~~ the Company shall, and shall cause the Company Subsidiaries to, and shall use commercially reasonable ~~best~~ efforts to cause ~~each of~~ its ~~Affiliates~~ and their Representatives to, ~~use reasonable best efforts to~~ provide ~~to Buyer such~~ customary cooperation that is reasonably requested by ~~Buyer and reasonably required in connection with the Financing~~ Parent or the Alternate Financing, including (to the extent reasonably requested and reasonably required): (i) participating in a customary and reasonable number of meetings, presentations, due diligence sessions, drafting sessions, road shows and sessions with rating agencies; (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered or otherwise) and similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii) as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer with (x) audited balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with financial and other information regarding the Business and the Assets as may be reasonably requested by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities contemplated by the Financing, or as otherwise reasonably required Merger Sub in connection with the Financing, including: (i) furnishing to Parent (A) audited consolidated balance sheets and related consolidated statements of operations, comprehensive (loss) income, changes in shareholders’ equity and cash flows for the Company for each of the three (3) most recently completed fiscal years of the Company ended at least sixty (60) days prior to the Closing Date prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year (it being agreed that publishing of such financial statements on the Company’s website or ~~as otherwise necessary in order to assist in receiving customary “comfort”~~ with the SEC (including ~~“negative assurance” comfort~~via ▇▇▇▇▇) ~~from independent accountants in connection with the offering(s) of debt or equity securities contemplated by the Financing (all such information in clause (iii) and~~ shall satisfy this clause (ivA)) and (B) unaudited condensed consolidated balance sheets and related condensed consolidated statements of operations, comprehensive (loss) income, changes in shareholders equity and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for each fiscal quarter of the Company ended after February 1, 2025 and at least forty (40) days prior to the Closing Date (it being agreed that publishing of such financial statements on the Company’s website or with the SEC (including ~~the Carve-Out Financials~~via ▇▇▇▇▇) shall satisfy this clause (B)) (together, the “Required ~~Information~~Financial Statements”); (vii) ~~providing~~ at reasonable times and locations (it being understood that any such meeting may take place via videoconference or web conference if mutually agreed among Parent and the Company), and upon reasonable advance notice, participating (and causing senior management and appropriate Representatives of the Company to participate) in a reasonable number of meetings, calls, presentations, road shows, lender presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies and otherwise cooperating with Parent’s marketing efforts for any of the Financing and assisting 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; (iii) assisting with the timely preparation and negotiation of materials (including, for the avoidance of doubt, customary rating agency presentations) and definitive documents customarily entered into in connection with debt financing similar to any Financing sought by Parent (such definitive documents, the “Financing Documents”); provided that such cooperation shall only be required to the extent that Parent has furnished to the Company a draft copy of any such Financing Document in order to provide the Company a reasonable opportunity to review; (iv) using commercially reasonable efforts to cause its independent auditors to (A) provide drafts and executed versions of customary auditors consents and customary comfort letters with respect to financial information relating to the ~~Business that is~~ Company and its Subsidiaries as reasonably ~~available~~ requested by Parent or as necessary, customary or desirable for financings similar to ~~it to assist~~ the Financing, (B) provide assistance in the preparation of pro forma financial statements and information (provided that Parent shall be responsible for the preparation of any pro forma financial statements and pro forma financial information), (C) attend a reasonable number of accounting due diligence sessions and drafting sessions at reasonable times and places, and (D) otherwise provide customary assistance; (v) using commercially reasonable efforts to (A) take actions reasonably 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) cooperate with Financing providers in performing due diligence and (C) assist in obtaining credit agreements, indentures, purchase agreements, currency or interest hedging arrangements, other definitive financing documents, officer’s certificates, customary closing documents, or other certificates or documents ratings; and (vi) in the event that the Company is in possession of material nonpublic information with respect to the ~~Financing contemplated by~~ Company or the ~~Financing as may be~~ Company Subsidiaries, if Parent reasonably ~~requested by Buyer; (vi) furnishing Buyer and their Financing sources as promptly as practicable all financial information required to be delivered~~ requests, filing a Current Report on Form 8-K pursuant to the Financing Letter and monthly financial statements for the Business (to the extent prepared in the ordinary course of business); (vii) assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, Exchange Act that contains such material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Financing, as reasonably requested by Buyer; provided that (A) nothing herein shall require such cooperation to the extent it would require Seller or any of its Affiliates to waive or amend any terms of this Agreement, incur any Liabilities, pay any fees, reimburse any expenses, in each case, nonpublic information with respect to the ~~Financing~~Company and the Company Subsidiaries, ~~prior~~ which Parent determines (and the Company does not unreasonably object) to ~~the Closing for which it has not received prior reimbursement by~~ include in a customary “public side” offering or on behalf of Buyer, or would cause Seller or any of its Affiliates to breach this Agreement or become unable to satisfy a condition to the Closing, (B) nothing herein shall require such cooperation from Seller or its Affiliates to the extent it would unreasonably interfere marketing document in connection with the ongoing operations of Seller or its Affiliates and (C) there shall be no action, Liability or obligation of Seller or its Affiliates under any certificate, agreement, arrangement, document or instrument relating to the Financing. Notwithstanding anything to the contrary in this Section 6.10, neither Seller nor its Affiliates shall be in breach of the covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth herein. (b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement of the Financing, any other financing and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement. (c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii) and (iv) of Section 6.10(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 made therein, in the light of the circumstances under which they were made, not misleading.

Appears in 2 contracts

Sources: Merger Agreement (Dick's Sporting Goods, Inc.), Merger Agreement (Dick's Sporting Goods, Inc.)

Financing Cooperation. (a) ~~For purposes~~ Prior to Closing, the Company shall use its reasonable best efforts, and shall cause its Subsidiaries to use reasonable best efforts, and each of ~~this~~ them shall use their reasonable best efforts to cause their respective Representatives to use their reasonable best efforts, to provide customary cooperation, to the extent reasonably requested by Parent or New Wildlife, necessary for the arrangement of the Financing, or the financing contemplated by the Alternative Debt Commitments or any other financing arrangements (including any equity or equity-linked financing consummated in accordance with Section ~~6.10~~4.2(d)(ii)), and, in such instance, the term “Financing” hereunder shall include ~~any Permanent Financing (as defined~~ such alternative financings, in ~~the Financing Letter)~~each case, ~~whether for debt~~subject to Parent’s and New Wildlife’s Reimbursement Obligations. Such assistance shall include, equity or otherwise. Prior to the Closing, Seller shall, and shall use reasonable best efforts to cause each of its Affiliates and Representatives to, use reasonable best efforts to provide to Buyer such cooperation reasonably requested by Buyer and reasonably required in connection with the Financing or the Alternate Financing, including (to the extent reasonably requested and reasonably required):without limitation: (i) participating (and causing senior management and Representatives of the Company to participate) in a ~~customary and~~ reasonable number of meetings, presentations, ~~due diligence sessions, drafting sessions,~~ road shows and due diligence sessions ~~with rating agencies~~and other customary syndication activities in respect of the Financing; (ii) ~~assisting with~~ furnishing Parent, New Wildlife and the ~~preparation~~ Debt Financing Sources, as promptly as practicable (A)(X)(I) in the case of ~~materials for rating agency presentations~~any audited financial statements of RE/MAX Holdings, ~~offering documents~~Inc., ~~private placement memoranda~~a Delaware corporation, bank information memoranda, prospectuses (registered or otherwise) and similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii) as promptly as reasonably ~~practical, and~~ practicable but in no event ~~later~~ more than March 31, 2013, furnishing Buyer with (x) audited balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within fortyseventy-five (4575) days after the end of the relevant fiscal year and (II) in the case of any unaudited quarterly financial statements, as promptly as reasonably practicable but in no event more than forty (40) days after the end of the relevant fiscal quarter, ~~unaudited interim~~ and (Y) all Required Financial Information (which shall be Compliant as of the Closing) (provided, that the filing of the required financial statements ~~for each fiscal quarter ending after January 1~~on Form 10-K, ~~2013~~ Form 10-Q, Form 6-K or Form 8-K by the Company will be deemed to satisfy the applicable requirements of the foregoing clauses (~~collectively~~X) or (Y), ~~the “Carve~~as applicable, so long as a subsequent Form 8-~~Out Financials”); (iv) in addition~~ K, Item 4.02 has not been filed with respect to the ~~information required pursuant to clause (iii~~financial statements included therein), ~~above~~(B) all financial statements, ~~as promptly as reasonably practical~~schedules, ~~furnishing Buyer and the other parties to the Financing Letter with~~ financial data, audit reports and other information regarding the ~~Business~~ Company and its Subsidiaries that are reasonably requested by Parent or New Wildlife to the ~~Assets~~ extent that such information is of the type that would be required by Regulation S-K or Regulation S-X under the Securities Act for a registered underwritten offering, Rule 144A offering or private placement of debt securities contemplated to be issued in lieu of any facility under the Financing and (C) such 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 ~~Buyer~~ Parent or New Wildlife and customarily required to assist in the preparation of bank information memoranda, lenders’ presentations, offering memoranda, prospectuses, prospectus supplements, and other customary marketing materials relevant to the Financing, including a customary confidential information memorandum or other customary information documents used in the Financing; provided, that nothing in clause (~~including~~ ii)(B) or (ii)(C) shall require the provision of any Excluded Information; (iii) using reasonable best efforts to cause the independent auditors of the Company to assist and cooperate with Parent and New Wildlife in connection with ~~Buyer’s~~ the Financing, including by (A) obtaining any required consent of such auditors for use of their audit reports in any offering materials relating to any such Financing, and the provision of customary “comfort” letters (including “negative assurance” and change period comfort) with respect to financial information relating to the Company and its Subsidiaries and (B) attending accounting due diligence sessions; (iv) using reasonable best efforts to cause senior management of the Company, with appropriate seniority and expertise, to assist in preparation of, and to participate in, a reasonable number of ~~pro forma financial statements~~meetings (including customary one-on-one meetings with the parties acting as lead arrangers, bookrunners or agents for, and prospective lenders and buyers of, the Financing), ~~including unaudited interim financial statements~~presentations, ~~financial data~~road shows, ~~projections~~sessions with rating agencies, ~~audit reports~~ due diligence sessions, drafting sessions and sessions between senior management and the Debt Financing Sources in connection with the Financing, in each case at reasonable times and with reasonable advance notice, and in each case which shall be virtual unless otherwise agreed to by the Company; (v) furnishing Parent, New Wildlife and the Debt Financing Sources, promptly and, in any event, at least four (4) Business Days prior to Closing, with all documentation and other information about the Company and its Subsidiaries as is reasonably requested by Parent or New Wildlife at least nine (9) Business Days prior to Closing, in accordance with the requirements of the ~~type required by Regulation S-X~~ Debt Financing Sources, relating to applicable “know your customer” and ~~Regulation S-K~~ AML Laws; (A) assisting in the preparation, execution and delivery of the ~~Securities Act of 1933~~ Definitive Agreements, including any credit agreement, guarantee and collateral documents, pledge and security documents, customary closing certificates and documents and back-up therefor and for legal opinions in connection with the Financing (including executing and delivering a ~~registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate~~ solvency certificate from the ~~offering(s~~chief financial officer or treasurer (or other comparable officer) of ~~debt~~ the Company (in the form attached as A▇▇▇▇ ▇ to Exhibit B to the Debt Commitment Letter)) and other customary documents as may reasonably be requested by Parent or ~~equity securities contemplated by~~ the Debt Financing Sources and (B) facilitating the pledging of, granting of security interests in and liens on collateral in connection with the Financing; (vii) (A) using reasonable best efforts to provide assistance with the preparation of materials for, as applicable, rating agency presentations, offering memoranda, prospectuses or ~~as otherwise reasonably~~ prospectus supplements, bank information memoranda, syndication memoranda, lender presentations and other customary marketing materials required in connection with the Financing, ~~or as otherwise necessary~~ (B) using reasonable best efforts to provide reasonable cooperation with the due diligence efforts of the Debt Financing Sources to the extent reasonable and customary (and, to the extent applicable, subject to the limitations contained in ~~order~~ this Agreement) and (C) providing customary authorization letters with respect to ~~assist in receiving~~ the Company authorizing the distribution of information to prospective lenders and investors (including, to the extent applicable, customary ~~“comfort”~~ 10b-5 and material non-public information representations) and customary certificates; (~~including “negative assurance” comfort~~viii) ~~from independent accountants~~ filing a Current Report on Form 8-K, if, in connection with the ~~offering(s) of debt or equity securities~~ marketing efforts contemplated by any Debt Financing Sources in connection with the ~~Financing (all such information in clause (iii) and this clause (iv)~~Financing, ~~including~~ Parent or New Wildlife reasonably requests the ~~Carve~~Company to furnish or file a Current Report on Form 8-~~Out Financials, the “Required Information”); (v) providing information relating~~ K pursuant to the ~~Business~~ Exchange Act that is reasonably available to it to assist in the preparation of any credit agreements, indentures, purchase agreements, currency or interest hedging arrangements, other definitive financing documents, officer’s certificates, customary closing documents, or other certificates or documents contains material non-public information with respect to the ~~Financing contemplated~~ Company and its Subsidiaries or their respective securities, which information is necessary or desirable (as reasonably agreed by P▇▇▇▇▇ and the ~~Financing as may be~~ Company) to include in customary offering documents or marketing materials for any Financing; and (ix) facilitating the taking, no earlier than the Closing, of customary corporate, limited liability company, partnership or other similar actions reasonably requested by ~~Buyer;~~Parent to permit the consummation of the Financing (provided that no such action shall be required of persons who are officers or directors of the Company or its Subsidiaries or any of their respective Affiliates prior to the First Merger Effective Time who will not be continuing in such capacities thereafter). (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 5.23, including with respect to any Encumbrance on any assets of the Company or its Subsidiaries in connection with the Financing, that would: (i) require the Company or its Subsidiaries or any of their respective Affiliates or any persons who are officers or directors of such entities to pass resolutions or consents to approve or authorize the execution of the Financing or enter into, 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 would be effective prior to the Closing Date or that is not contingent upon the Closing (except (I) the authorization letters set forth in clause (a)(vii)(C) above, (II) the “know-your-customer” and anti-money laundering documents contemplated by clause (a)(v) above and (III) to approve regulatory filings relating to the Company or its Subsidiaries in connection with the Financing (clauses (I) through (III), collectively, the “Pre-Closing Financing Deliverables”) (for the avoidance of doubt, any persons who are officers or directors of the Company or its Subsidiaries or any of their respective Affiliates prior to the First Merger Effective Time who will not be continuing in such capacities thereafter shall not be required to pass any resolutions or consents to approve or authorize the execution of the Financing or enter into, 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 connection with the Financing other than the Pre-Closing Financing Deliverables), (ii) cause any representation or warranty in this Agreement to be breached by the Company or any of its Subsidiaries, (iii) require the Company or any of its Subsidiaries to pay any commitment or other similar fee, (iv) reasonably be expected to cause any director, officer, employee or stockholder of the Company or any of its Subsidiaries to incur any personal liability, (v) reasonably be expected, in the reasonable judgment of the Company, to conflict with the Company Governing Documents, any Legal Requirements or any Material Contract or obligations of confidentiality (not created in contemplation hereof) binding on the Company or any of its Subsidiaries, (vi) ~~furnishing Buyer and their Financing sources as promptly as practicable all financial~~ 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 to which the Company or any of its Subsidiaries is a party (other than any Material Contract entered into in contemplation hereof), (vii) provide access to or disclose information ~~required~~ that the Company or any of its Subsidiaries determines in good faith would jeopardize any attorney-client privilege or other applicable privilege or protection of the Company or any of its Subsidiaries, (viii) require the delivery of any opinion of counsel, (ix) require the Company to ~~be delivered pursuant to the Financing Letter and monthly~~ prepare any financial statements ~~for the Business (~~or information that are not available to ~~the extent~~ it and prepared in the ordinary course of ~~business~~its financial reporting practice (other than, for the avoidance of doubt, the Required Financial Information); , (~~vii~~x) ~~assisting Buyer~~ require the preparation or delivery of any Excluded Information (other than, for the avoidance of doubt, as contemplated by this Section 5.23(b)), (xi) unreasonably interfere with the conduct of the ongoing business of the Company, (xii) create a risk of damage or destruction to ~~obtain waivers~~any property or assets of the Company, ~~consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and~~ (~~viii~~xiii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating cause any condition to the ~~Financing, as reasonably requested by Buyer; provided that~~ Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement or (Axiv) ~~nothing herein shall~~ require ~~such cooperation to~~ the ~~extent it would require Seller~~ change of any fiscal period of the Company or any of its ~~Affiliates~~ Subsidiaries. Nothing contained in this Section 5.23 or otherwise shall require the Company or any of its Affiliates, prior to ~~waive~~ the Closing, to be an issuer or ~~amend any terms of this Agreement, incur any Liabilities, pay any fees, reimburse any expenses, in each case,~~ other obligor with respect to the Financing. Parent shall, ~~prior to~~ promptly on request by the ~~Closing for which it has not received prior reimbursement by or on behalf of Buyer~~Company, ~~or would cause Seller~~ reimburse the Company or any of its ~~Affiliates to breach this Agreement~~ Subsidiaries for all reasonable and documented out-of-pocket costs and expenses (including attorneys’ fees) incurred by them or ~~become unable to satisfy a condition to the Closing, (B) nothing herein shall require~~ their respective Representatives in connection with such cooperation ~~from Seller or~~ and shall reimburse, 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 Financing, any action taken by them pursuant to this Section 5.23 or otherwise at the request of Parent, New Wildlife or their respective Representatives in connection with the Financing and any information used in connection therewith, except to the extent it that any of the foregoing is determined by a final, non-appealable judgment of a court of competent jurisdiction to have arisen from the (x) bad faith, gross negligence or willful misconduct of the Company or any of its representatives or (y) financial statements, financial information or other materials prepared prior to the date hereof or, after the date hereof, that the Company would ~~unreasonably interfere~~ have prepared in the ordinary course of business (such reimbursement, indemnification, and hold harmless obligations described in this sentence, the “Parent Reimbursement Obligations”). (c) The parties acknowledge and agree that the provisions contained in this Section 5.23 represent the sole obligation of the Company and its Subsidiaries with respect to cooperation in connection with the ~~ongoing operations~~ arrangement of ~~Seller~~ any financing (including the Financing) to be obtained by Parent or ~~its Affiliates~~ New Wildlife with respect to the Contemplated Transactions and the transactions contemplated by the Debt Commitment Letter, and no other provision of this Agreement (Cincluding the annexes, exhibits and schedules hereto) ~~there~~ or the Debt Commitment Letter shall be ~~no action, Liability~~ deemed to expand or ~~obligation of Seller or its Affiliates under any certificate, agreement, arrangement, document or instrument relating to the Financing~~modify such obligations. Notwithstanding anything to the contrary in this ~~Section 6.10~~Agreement, ~~neither Seller nor its Affiliates shall be in~~ a breach of the ~~covenant~~ obligations of the Company or its Subsidiaries under Section 5.23(a) may not be asserted by Parent, New Wildlife or any of their respective Affiliates or Representatives as the basis for (x) the conditions set forth in Section 6.2(a) or Section 6.2(b) not being satisfied; or (y) the termination of this Agreement pursuant to Section ~~6.10~~ 7.1(g), if it the Financing has ~~acted in good faith~~ been funded or is reasonably expected to ~~comply with~~ be funded if the ~~cooperation and assistance set forth herein~~date of such assertion was the Closing Date. (bd) ~~Buyer~~ Parent and New Wildlife shall ~~indemnify~~ ensure that all nonpublic or otherwise confidential information regarding the ~~Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred~~ Company or ~~suffered by, or asserted against,~~ any of ~~them~~its Affiliates obtained by Parent, ~~directly~~ New Wildlife or ~~indirectly relating to, arising out of or resulting from~~ their respective Representatives pursuant to this Section 5.23 shall be kept confidential and used only in accordance with and otherwise treated as provided in the ~~arrangement of~~ Confidentiality Agreement and the ~~Financing, any other financing and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement~~Clean Team Agreement. (ce) ~~Seller will use~~ The Company shall, and shall cause its ~~reasonable best efforts~~ Affiliates to, supplement to ~~update~~ Required Financial Information ~~provided~~ on a reasonably current basis to ~~Buyer pursuant~~ the extent that any such Required Financial Information, to ~~clauses (iii) and (iv) of Section 6.10(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 made therein, in the light~~ Knowledge of the ~~circumstances under which they were made~~Company, is not ~~misleading~~Compliant.

Appears in 2 contracts

Sources: Arrangement Agreement and Plan of Merger (Real Brokerage Inc), Arrangement Agreement and Plan of Merger (RE/MAX Holdings, Inc.)

Financing Cooperation. (a) ~~For purposes of this Section 6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise.~~ Prior to the Closing, ~~Seller shall~~the Company shall provide, and shall cause its Subsidiaries to provide, such reasonable and customary cooperation (and to use commercially reasonable ~~best~~ efforts to cause ~~each~~ its and their respective officers, directors, employees, accountants, legal counsel, agents, other advisors and authorized representatives to provide such reasonable and customary cooperation), at the Purchaser’s sole cost and expense (other than with respect of the preparation of the Post-Signing Financial Statements), with respect to any equity and/or debt financings (including any capital markets debt financing or any equity financing (whether public or private)) undertaken by the Purchaser or its Affiliates ~~and Representatives to, use reasonable best efforts to provide to Buyer such cooperation reasonably requested by Buyer and reasonably required~~ in connection with the ~~Financing~~ transactions contemplated hereby prior to or concurrently with the ~~Alternate~~ Closing (such financing, the “Financing”), including ~~(to the extent reasonably requested and reasonably required):~~using commercially reasonable efforts to: (i) ~~participating~~ furnish to the Purchaser (or, in the case of clauses (v) through (y) below, to the Financing Sources at the written request of the Purchaser) with (v) no later than March 31, 2018 (provided that the Closing has not occurred by such date), an audited consolidated balance sheet of the Company and the related audited consolidated statements of income, members’ equity and cash flows (prepared in accordance with GAAP) (including, an unqualified audit opinion of the Company’s independent auditors with respect to such financial statements) for the fiscal year ended December 31, 2017, (w) no later than the date which is forty five (45) days after the end of each fiscal quarter ended subsequent to March 31, 2018 (provided that the Closing has not occurred by such date), unaudited consolidated balance sheets of the Company (prepared in accordance with GAAP), as of the end of, and the related unaudited consolidated statements of income, members’ equity, and cash flows for, each such fiscal quarter and which unaudited financial statements shall be subject to a customary SAS 100 review by the Company’s independent auditors if necessary or desirable in connection with any Financing or if reasonably requested by the Financing Sources, (x) not later than twenty (20) days after the last calendar day in each month following the date of this Agreement prior to the Closing (or, if the twentieth (20th) day after the last calendar day in such month falls on a day that is not a Business Day, then no later than the next Business Day after such twenty (20th) day), the financial information described on Schedule 7.07(a)(i)(x) (the financial statements in clauses (v), (w) and (x), the “Post-Signing Financial Statements”), (y) as promptly as reasonably practicable upon request by the Purchaser, information relating to the Company and its Subsidiaries that is reasonably available to the Company and is reasonably required by the Purchaser and the Financing Sources to produce one or more customary confidential information memoranda, investor presentations, bank information memoranda, offering memoranda, private placement memoranda, registration statements, prospectuses and/or prospectus supplements and other customary marketing materials to be used in connection with the Financing, including identifying any portion of the information that constitutes material, non-public information and delivering customary representation letters and authorization letters, in each case, as deemed reasonably necessary by the Financing Sources to receive customary accountants’ comfort letters (other than (A) any pro forma financial information, (B) any description of the Financing or the transactions contemplated by this Agreement and (C) any information customarily provided by an investment bank) and (z) the Required Bank Information and reasonably cooperate, and cause its independent auditors to reasonably cooperate, with the Purchaser to update and correct any Required Bank Information such that the Required Bank Information remains Compliant; provided that, if the Company has otherwise complied with its obligations under this Section 7.07(a)(i) and the Purchaser requests in writing that the Company cause its independent auditors to assist in complying with the requirements of clause (b) of the term “Compliant,” the Purchaser shall reimburse the Company for any additional reasonable and documented costs of such independent auditors solely to the extent such costs are incurred in complying with such request as it relates to clause (b) of the term “Compliant”; provided further that it is understood and agreed that any unaudited Post-Signing Financial Statements and Required Bank Information shall be prepared in accordance with GAAP in a manner and with interpretations consistent with the Company’s past accounting practices (but without limiting the requirement in clause (z) of this Section 7.07(a)(i) that the Company use commercially reasonable efforts to cause such Required Bank Information be Compliant); (ii) participate in, and provide appropriate and customary ~~and~~ assistance with the preparation of materials for, a reasonable number of ~~meetings~~requested and customary meetings (including upon reasonable advance notice and during normal business hours, customary one-on-one 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), presentations, road shows, due diligence sessions, drafting ~~sessions, road shows~~ sessions and sessions with rating ~~agencies~~agencies in connection with the syndication or other marketing of the Financing; (iiiii) ~~assisting~~ reasonably assist with (A) the preparation of materials for rating agency presentations, investor presentations, bank information memoranda, offering ~~documents~~memoranda, private placement memoranda, ~~bank information memoranda~~registration statements, ~~prospectuses~~ prospectuses, prospectus supplements, marketing materials (~~registered or otherwise~~including “public” and “private” versions) and similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii) as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer with (x) audited balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with financial and other information regarding the Business and the Assets as may be reasonably requested by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities contemplated by the Financing, or as otherwise reasonably required in connection with the Financing, ~~or as otherwise necessary in order~~ (B) the preparation of customary pro forma financial statements reflecting the transactions contemplated by this Agreement and the Financing and (C) providing any information reasonably requested by the Purchaser to assist the Purchaser in ~~receiving customary “comfort”~~ obtaining corporate, corporate family, credit, facility and securities ratings from rating agencies; (iv) request its independent accountants to provide reasonable assistance to the Purchaser, consistent with their professional practice (including ~~“negative assurance” comfort) from independent accountants~~ upon reasonable advance notice and during normal business hours, participating in a reasonable number of accounting due diligence sessions, providing their consent to the Purchaser to use their audit reports relating to the Company on customary terms in connection with the ~~offering(s~~Financing and facilitating the delivery of customary comfort letters (including as to negative assurance) if reasonably necessary or desirable for the Purchaser to use the financial statements of ~~debt~~ the Company in any marketing or ~~equity securities contemplated by~~ offering materials to be used in connection with the ~~Financing (all such information in clause (iii) and this clause (iv), including the Carve-Out Financials, the “Required Information”~~Financing); (v) ~~providing information relating~~ execute and deliver definitive financing agreements, instruments, certificates, letters (including authorization letters to lenders reasonably required in connection with the ~~Business that is reasonably available to it to assist in the preparation~~ syndication of any ~~credit agreements, indentures, purchase agreements, currency~~ Financing 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 if reasonably requested by the Financing ~~as may be~~ Sources) and other documents, to the extent reasonably requested by ~~Buyer~~the Purchaser or the Financing Sources and customary for financings of the type(s) similar to the Financing; (vi) ~~furnishing Buyer~~ cooperate and ~~their Financing sources as promptly as practicable all financial~~ provide customary information and certificates and other documents reasonably necessary to assist legal counsel to the Purchaser in connection with any legal opinions that such counsel may be required to ~~be delivered pursuant to~~ give in connection with the ~~Financing Letter~~ Financing, in each such case, as is necessary and ~~monthly financial statements for~~ customary in connection with the ~~Business (to the extent prepared in the ordinary course of business)~~Financing; (vii) ~~assisting Buyer to obtain waivers~~cooperate reasonably with any customary due diligence requests by the Purchaser, ~~consents, estoppels~~ the Financing Sources and ~~approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound~~their respective legal counsel; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Financing, furnish as promptly as reasonably ~~requested by Buyer; provided that~~ practicable (Aand in any event at least three (3) nothing herein shall require such cooperation to the extent it would require Seller or any of its Affiliates to waive or amend any terms of this Agreement, incur any Liabilities, pay any fees, reimburse any expenses, in each case, with respect to the Financing, Business Days prior to the Closing Date) all documentation and other information reasonably required by the Financing Sources from the Company and its Subsidiaries that such Financing Sources reasonably determine is required by regulatory authorities for ~~which it~~ compliance with applicable “know your customer” and anti-money laundering rules and regulations, including U.S.A. Patriot Act of 2001, as amended, that has ~~not received~~ been requested by the Purchaser or any of the Financing Sources at least ten (10) Business Days prior ~~reimbursement~~ to the Closing Date; provided that the effectiveness of any certificate, definitive agreements or other documentation executed by or on behalf of ~~Buyer, or would cause Seller~~ the Company or any of its ~~Affiliates to breach this Agreement or become unable to satisfy a condition~~ Subsidiaries shall be subject to the Closing. (b) In no event shall the Company or any of its Subsidiaries be required to (i) bear any third-party cost or expense, pay any third-party fee or incur any other actual or potential liability or give any indemnities arising from or directly or indirectly attributable to the Financing (including, for the avoidance of doubt, any fees and expenses of its accountants in providing any assistance to Seller (other than year-end audit expenses and expenses incurred in any review of the Post-Signing Financial Statements in a manner consistent with the Company’s past accounting practices) under this Section 7.07 prior to Closing (other than as are contingent upon Closing or which are reimbursed by the Purchaser)), (Bii) ~~nothing herein shall require such cooperation from Seller~~ undertake any obligation or ~~its Affiliates~~ liability whatsoever to any Financing Source that is not reimbursed by the Purchaser, (iii) take any actions to the extent it such actions would unreasonably interfere with the ongoing business or operations of ~~Seller~~ the Company or any of its Subsidiaries, (iv) take any action that would reasonably be expected, in the reasonable judgment of the Company after consultation with its legal counsel, to conflict with, or result in any violation or breach of, any applicable (A) Laws, (B) obligations of confidentiality (not created in contemplation hereof) binding on the Company or its ~~Affiliates~~ Subsidiaries (provided that in the event that the Company or its Subsidiaries do not provide information in reliance on the exclusion in this clause (B), the Company and its Subsidiaries shall provide notice to the Purchaser promptly that such information is being withheld (but solely if providing such notice would not violate such obligation of confidentiality)), (C) ~~there shall be no action~~organizational documents, ~~Liability~~ or ~~obligation~~ (D) material Contract to which the Company or any of ~~Seller~~ its Subsidiaries is a party, (v) provide or cause legal counsel for the Company or any of its ~~Affiliates under~~ Subsidiaries to provide any ~~certificate~~legal opinions, ~~agreement, arrangement, document or instrument relating~~ (vi) cause any condition to ~~the Financing. Notwithstanding anything to the contrary in this Section 6.10, neither Seller nor its Affiliates shall be in breach of the covenant~~ Closing set forth in Article III to fail to be satisfied or otherwise cause any breach of this Agreement, or (vii) except as contemplated by Section ~~6.10 if it has acted~~ 7.08, execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Financing that is not contingent upon the Closing or that would be effective prior to the Closing (other than the authorization letters referred to above) and the directors and managers of the Company and the Subsidiaries of the Company shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Financing is obtained (except for resolutions approving agreements, documents, instruments and other actions that are contemplated by Section 7.08), in ~~good faith~~ each case which are effective prior to ~~comply~~ the Closing. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the ~~cooperation~~ Financing provided that such logos are used solely in a manner that is customary for such purpose and ~~assistance set forth herein. (b) Buyer shall indemnify~~ not intended to or reasonably likely to harm or disparage the ~~Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred~~ Company or ~~suffered by, or asserted against,~~ any of ~~them, directly~~ its Subsidiaries or ~~indirectly relating to, arising out of~~ the reputation or ~~resulting from the arrangement~~ goodwill of the ~~Financing~~Company or any of its Subsidiaries or any of their respective products, ~~any~~ services, offerings or intellectual property rights and on such other ~~financing and/or~~ customary terms and conditions as the ~~provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement~~Company shall reasonably request. (c) ~~Seller will~~ The Purchaser shall 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, third-party costs and expenses suffered or incurred by any of them arising from or related to the Financing, any information prepared or used in connection therewith (other than any information provided in writing by the Company, the Sellers through the Company, or any of their respective Subsidiaries expressly for use in connection therewith), except to the extent (x) arising from the Fraud or willful misconduct of the Company or its ~~reasonable best efforts~~ Affiliates or their respective Representatives, or (y) that such losses, damages, claims, interest, awards, judgments, penalties, third-party costs or expenses are directly and primarily the result of a material breach of this Agreement; provided, that the foregoing shall not expand or change Seller’s indemnification obligations for a breach of its representations and warranties as set forth in Article XII. (d) The Purchaser acknowledges and agrees that any access or information contemplated to ~~update Required Information~~ be provided by the Company or any of its Subsidiaries pursuant to this Section 7.07 shall, to the extent such information constitutes material non-public information of the Company, only be provided to ~~Buyer~~ other Persons, including any potential Financing Sources, if such other Person affirmatively agrees to maintain the confidentiality of such information pursuant to ~~clauses~~ a customary confidentiality agreement. (~~iii~~e) The Company shall be given a reasonable opportunity to review and comment on any confidential information memoranda, investor presentations, bank information memoranda, offering memoranda, private placement memoranda, registration statements, prospectuses and/or prospectus supplements and other customary marketing materials to be used in connection with the Financing, and any materials for rating agencies, that include information about the Company or any of its Subsidiaries prepared in connection with the Financing. (ivf) ~~of Section 6.10(a) as may be necessary such~~ The Purchaser acknowledges and agrees 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 made therein, in the light~~ obtaining of the ~~circumstances~~ Financing is not a condition to Closing or its obligations under ~~which they were made~~this Agreement. (g) Notwithstanding anything in this Agreement to the contrary, ~~not misleading~~nothing herein shall limit or otherwise affect the obligations of the Company or any of its Affiliates with respect to any financing cooperation or similar covenants contained in any other Contract entered into by the Company or any of its Subsidiaries with the Purchaser or any of its Affiliates, including any Ancillary Agreement.

Appears in 1 contract

Sources: Securities Purchase Agreement (New Residential Investment Corp.)

Financing Cooperation. (a) ~~For purposes of this~~ Subject to Section ~~6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter~~6.11(e), ~~whether for debt, equity or otherwise. Prior~~ prior to the Closing, ~~Seller~~ the Company shall, and shall cause its Subsidiaries to, use its and their reasonable best efforts to ~~cause each~~ cooperate in connection with the closing of the Financing (provided, that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its ~~Affiliates and Representatives to~~Subsidiaries). Such cooperation by the Company shall include, ~~use~~ at the reasonable request of Parent, (i) using reasonable best efforts to ~~provide~~ furnish, or cause to ~~Buyer~~ be furnished, to Parent and its Financing Sources such ~~cooperation~~ customary financial and other information as Parent shall reasonably ~~requested by Buyer~~ request and ~~reasonably~~ customarily required in connection with the ~~Financing~~ execution of syndicated bank credit facilities (but without the Company having to prepare separate financial statements for any Subsidiary or ~~the Alternate Financing~~changing any fiscal period), including audited consolidated balance sheets and related statements of operations, comprehensive income (loss), and cash flows of the Company, in each case, for the three most recently completed fiscal years ended at least 90 days prior to the ~~extent reasonably requested~~ Closing Date and ~~reasonably required):~~ unaudited consolidated balance sheets and related statements of operations, comprehensive income (iloss), and cash flows of the Company, in each case, for each subsequent fiscal quarter ended at least forty-five (45) days prior to the Closing Date, (ii) providing reasonable assistance in the preparation by Parent of (x) an update to the quality of earnings report through December 31, 2017 and (y) the sponsor model, in each case as required by the Debt Commitment Letter, (iii) participating in a ~~customary and~~ reasonable number of meetings, lender presentations, due diligence sessions, drafting ~~sessions~~sessions and road shows, ~~road shows~~ in each case, upon reasonable advance notice and ~~sessions with rating agencies;~~ at mutually agreed times, (iiiv) ~~assisting with the~~ providing reasonable assistance to Parent in its preparation of ~~materials for~~ rating agency presentations, ~~offering documents, private placement memoranda,~~ customary bank information ~~memoranda, prospectuses (registered or otherwise)~~ memoranda and similar documents ~~for the Financing, including execution~~ reasonably and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii) as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer with (x) audited balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with financial and other information regarding the Business and the Assets as may be reasonably requested by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily ~~included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities 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 “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt or equity securities contemplated by the Financing (all such information in clause (iii) and this clause (iv), including the Carve-Out Financials, the “Required Information”); (v) ~~providing information relating~~ calls with material customers and vendors, (vi) subject to ~~the Business that is reasonably available to it to assist~~ any contractual agreement in ~~the preparation of any credit agreements~~effect, indentures, 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 taking such actions as ~~may be~~ are reasonably requested by ~~Buyer; (vi) furnishing Buyer~~ Parent to facilitate the pledging of collateral for the Debt Financing, including, upon reasonable advance written notice at mutually agreeable times and, if applicable, locations, taking commercially reasonable actions necessary to permit the Financing Sources to evaluate the Company’s and ~~their Financing sources as promptly as practicable all financial information required to be delivered pursuant~~ its Subsidiaries’ real property and personal property, including current assets, that would constitute collateral under the documents and agreements related to the ~~Financing Letter~~ Debt Financing, to evaluate the Company’s and ~~monthly financial statements for the Business (~~its Subsidiaries’ cash management and accounting systems and policies and procedures and to the extent prepared in the ordinary course of business); (vii) assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, conduct any surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other ~~documentation and items~~ evaluations relating to the Financing, as reasonably requested by Buyer; provided that (A) nothing herein shall require such cooperation to the extent it would require Seller or any of its Affiliates to waive or amend any terms of this Agreement, incur any Liabilities, pay any fees, reimburse any expensesFinancing and collateral arrangements, in each case, ~~with respect~~ solely for the purpose of establishing pledges over such assets to secure the obligations under the documents and agreements related to the Debt Financing, which documents and agreements shall not be required to be delivered or effective until at or following the Effective Time and (vii) using reasonable best efforts to furnish to Parent and its Financing Sources as promptly as reasonably practical with all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested by Parent at least ten (10) Business Days prior to the Closing Date, as well as information reasonably required for ~~which it has not received prior reimbursement~~ Financing Sources to conduct background checks required by the Debt Commitment Letter; provided, that neither the foregoing clauses of this Section 6.12(a) nor anything else in Section 6.11, this Section 6.12 or ~~on behalf of Buyer, or would cause Seller~~ Section 6.13 shall require the Company or any of its ~~Affiliates~~ Subsidiaries or any of their respective directors, officers, employees or representatives to ~~breach~~ take any action that would (A) interfere unreasonably with the ongoing business or operation of the Company and its Subsidiaries, (B) cause any representation or warranty in this Agreement to be breached, (C) cause any condition to Closing to fail to be satisfied or ~~become unable~~ otherwise cause any breach of this Agreement, (D) require the Company or any of its Subsidiaries to ~~satisfy a condition~~ be the issuer or guarantor of any securities or borrower or guarantor under any debt facility or issue any offering document, bank book or similar document, or make any payment to any Person, in each case, prior to the Closing, (BE) involve any binding commitment by the Company or any of its Subsidiaries which commitment is not conditioned on the Closing and does not terminate without liability to the Company or any of its Subsidiaries upon the termination of this Agreement, (F) require the Company or any of its Subsidiaries to provide any information the disclosure of which is prohibited or restricted under applicable Law or is legally privileged, or (G) require the Company or any of its Subsidiaries to take any action that would reasonably be expected to conflict with or violate its organizational documents, any Laws or result in a violation or breach of, or default under, any agreement to which the Company or any of its Subsidiaries is a party, (H) require the Company or any of its Subsidiaries, or their respective directors and officers, to enter into or approve any Financing prior to the Closing, or (I) require the Company or any of its Subsidiaries or their respective counsel to provide any legal opinion or other opinion of counsel prior to the Closing; provided, further, that nothing herein shall ~~require such cooperation from Seller~~ authorize Parent or its ~~Affiliates~~ Representatives to ~~the extent it would unreasonably interfere with the ongoing operations of Seller~~ undertake any environmental investigations or ~~its Affiliates and (C) there shall be no action, Liability or obligation of Seller or its Affiliates under~~ sampling at any certificate, agreement, arrangement, document or instrument relating to the Financing. Notwithstanding anything to the contrary in this Section 6.10, neither Seller nor its Affiliates shall be in breach of the ~~covenant set forth in this Section 6.10 if it has acted in good faith to comply with~~ properties owned, operated or leased by the ~~cooperation~~ Company and ~~assistance set forth herein. (b) Buyer~~ its Subsidiaries without the Company’s prior written consent, which shall ~~indemnify~~ not be unreasonably withheld. The Company will, upon the ~~Seller Indemnitees from~~reasonable written request of Parent, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement of the Financing, any other financing and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement. (c) Seller will use its reasonable best efforts to update ~~Required Information~~ periodically any information required to be provided ~~to Buyer~~ by the Company pursuant to ~~clauses~~ this Section 6.12 (~~iii~~to the extent it is available) to be included in any document to be used in connection with such Debt Financing so that Parent may ensure that any such information is compliant. (b) The Company hereby consents to the use of its and ~~(iv) of Section 6.10(a) as may be necessary such~~ its Subsidiaries’ logos in connection with the Financing; provided that the ~~Required Information does~~ logos are used solely in a manner that is not ~~contain any untrue statement of material fact~~ intended or ~~omit~~ reasonably likely to ~~state any material fact necessary in order to make~~ harm or disparage the ~~statements made therein, in~~ Company or its Subsidiaries or the ~~light~~ reputation or goodwill of the ~~circumstances under which they were made~~Company or any of its Subsidiaries. (c) All non-public or other confidential information provided by the Company to Parent or its Affiliates pursuant to this Section 6.12 shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent shall be permitted to disclose such information to rating agencies and prospective lenders and investors during syndication of the Debt Financing contemplated by the Debt Commitment Letter, subject to customary confidentiality undertakings in form and substance reasonably acceptable to the Company. Notwithstanding anything in this Agreement to the contrary, neither the Company nor any of its Subsidiaries shall be required to pay any commitment or other similar fee or enter into any definitive agreement or incur any other liability or obligation in connection with the Financing (or any alternative financing) prior to the Effective Time, or pay any expenses prior to the Effective Time that are not ~~misleading~~promptly reimbursed by Parent as set forth in this Section 6.12.

Appears in 1 contract

Sources: Merger Agreement (Hardinge Inc)

Appears in 1 contract

Sources: Merger Agreement (Rice Energy Operating LLC)

Financing Cooperation. (a) ~~For purposes of this Section 6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise.~~ Prior to the ~~Closing~~Effective Time, ~~Seller shall~~the Company shall use its reasonable best efforts, and shall cause the Company Subsidiaries to use their reasonable best efforts, and shall use its reasonable best efforts, to cause its and their respective Representatives to, provide all customary cooperation and all customary financial information, in each case that is reasonably requested by Parent in connection with any financing, including the Debt Financing, obtained or to be obtained by Parent for the purpose of financing the Transactions or any transaction undertaken in connection therewith (it being understood that the receipt of any such financing is not a condition to the Merger), including by using reasonable best efforts to: (i) furnish, or cause to be furnished, to Parent (x) audited consolidated balance sheets and related consolidated statements of operations and comprehensive income (loss), consolidated statements of shareholders’ equity and consolidated statements of cash flows for the Company for each of the three (3) most recently completed fiscal years of the Company ended at least sixty (60) days prior to the Closing Date prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year (which Parent hereby acknowledges receiving for the three (3) fiscal years ended March 27, 2021, April 2, 2022 and April 1, 2023) and (y) unaudited consolidated balance sheets and related consolidated statements of operations and comprehensive income (loss), consolidated statements of shareholders’ equity and consolidated statements of cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for each subsequent fiscal quarter ended on a date that is at least forty (40) days before the Closing Date; (ii) cause the Company’s and the Company Subsidiaries’ independent accountants, as reasonably requested by Parent, to (a) consent to the use of their audit reports on the financial statements of the Company and the Company Subsidiaries in any materials relating to, or any filings made with the SEC related to, such financing, (b) provide, consistent with customary practice, “comfort letters,” including customary “negative assurances” (including drafts thereof which such accountants are prepared to issue at the time of pricing and at closing of any offering or placement of the Debt Financing) necessary and reasonably requested by Parent in connection with any debt capital markets transaction comprising a part of such financing, and (c) participate in reasonable and customary due diligence sessions, which sessions shall be telephonic or held by videoconference and held at reasonable and mutually agreeable times; (iii) assist Parent in (including by providing information relating to the Company and the Company Subsidiaries reasonably required and requested by Parent in connection with) its preparation of rating agency presentations, road show materials, bank information memoranda, projections, prospectuses, bank syndication materials, credit agreements, offering memoranda, private placement memoranda, definitive financing documents (as well as customary certificates and “backup” support) and similar or related documents to be prepared by Parent in connection with such financings, and which may incorporate by reference periodic and current reports filed by the Company with the SEC, including any historical financial information of the Company and the Company Subsidiaries required for the preparation by Parent of customary pro forma financial information and pro forma financial statements to the extent required by Regulation S-X under the Securities Act or any other accounting rules and regulations of the SEC, and/or in connection with such financing (it being agreed that the Company need only assist in the preparation thereof but shall not be required to (x) prepare independently any pro forma financial statements or (y) provide any information or assistance relating to (A) the proposed aggregate amount of debt financing, together with assumed interest rates, dividends (if any) and fees and expenses relating to the incurrence of such debt, (B) any post-Closing or pro forma cost savings, synergies, capitalization or ownership desired to be incorporated into any information used in connection with such financing or (C) any financial information related to Parent or any Parent Subsidiaries); (iv) cooperate with customary marketing efforts of Parent for such financing, including using reasonable best efforts to cause ~~each of~~ its ~~Affiliates~~ management team, with appropriate seniority and ~~Representatives to~~expertise, ~~use reasonable best efforts~~ to ~~provide~~ assist in preparation for and to Buyer such cooperation reasonably requested by Buyer and reasonably required in connection with the Financing or the Alternate Financing, including (to the extent reasonably requested and reasonably required): (i) participating participate in a ~~customary and~~ reasonable number of meetings, presentations, road shows, due diligence sessions (including accounting due diligence sessions), drafting sessions, and sessions with rating agencies, in each case, upon reasonable notice and at mutually agreeable dates and times, which sessions meetings, presentations, road shows and sessions with rating agencies; (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered shall be telephonic or otherwise) and similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii) as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer with (x) audited balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with financial and other information regarding the Business and the Assets as may be reasonably requested held by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities 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 “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt or equity securities contemplated by the Financing (all such information in clause (iii) and this clause (iv), including the Carve-Out Financials, the “Required Information”)video conference; (v) ~~providing information relating~~ deliver to Parent, no later than four (4) Business Days prior to the ~~Business that is reasonably available~~ Closing Date, any materials and documentation about the Company and the Company Subsidiaries required under applicable “know your customer” and anti-money laundering Laws (including the Uniting and Strengthening America by Providing Appropriate Tools Required to ~~it to assist in the preparation~~ Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of ~~any credit agreements~~2001), indentures, 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~~ extent requested by ~~Buyer~~Parent no less than nine (9) Business Days prior to the Closing Date; (vi) ~~furnishing Buyer and their Financing sources~~ inform Parent promptly in writing if the Company (A) concludes that any previously issued financial statement of the Company or any of Subsidiaries included in any materials with respect to such financing should no longer be relied upon as ~~promptly as practicable all financial information required to be delivered pursuant to~~ per Item 4.02 of Form 8-K under the ~~Financing Letter and monthly~~ Exchange Act or (B) shall have determined a restatement of any of the Company’s or the Company Subsidiaries’ financial statements ~~for the Business (to the extent prepared in the ordinary course of business)~~is required or reasonably likely; (vii) ~~assisting Buyer~~ cooperate with respect to ~~obtain waivers~~the provision of guarantees required by such financing, ~~consents~~including by executing and delivering definitive documents related thereto, ~~estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which~~ it being understood that the ~~Assets or~~ effectiveness of any such guarantees shall be conditioned upon the ~~Business are bound~~occurrence of the Closing; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating provide customary authorization letters to the ~~Financing~~Financing Parties authorizing the distribution of information to prospective lenders or investors and containing a representation that the public side versions of such documents, ~~as reasonably requested by Buyer;~~ if any, do not include material non-public information about the Company or the Company Subsidiaries (only to the extent such authorization letters contain customary disclaimers for the Company, its affiliates and their respective Representatives with respect to responsibility for the use or misuse of the contents thereof), provided that the Company is afforded adequate time to review such authorization letters and related materials; provided, however, that (Aa) ~~nothing herein shall require~~ no such cooperation shall be required under this Section 6.13 or Section 6.14(b) to the extent it would (i) unreasonably disrupt the conduct of the Company’s business, (ii) require ~~Seller~~ the Company or the Company Subsidiaries to incur any fees, expenses or other liability prior to the Effective Time for which it is not promptly reimbursed or simultaneously indemnified, (iii) be reasonably expected to cause any director, officer or employee of the Company or any ~~of its Affiliates~~ Company Subsidiary to incur any personal liability, (iv) require the Company to waive or amend any terms of this Agreement, ~~incur~~ (v) require the Company or any ~~Liabilities~~Company Subsidiary to provide any information that is prohibited or restricted by applicable Law or is legally privileged (provided, ~~pay any fees~~however, ~~reimburse any expenses,~~ that the Company shall use its reasonable best efforts to make appropriate substitute arrangements to permit reasonable disclosure not in ~~each case, with respect~~ violation of Law or to allow for such access or disclosure to the ~~Financing~~maximum extent that does not result in a loss of such legal privilege), (vi) require the Company or any Company Subsidiary or any persons who are officers or directors of such entities to pass resolutions or consents to approve or authorize the execution of such financing or enter into, execute or deliver any certificate, document, instrument or agreement (other than the authorization letters referred to in Section 6.13(a)(viii) above, customary representation letters required in connection with the provision of any “comfort letters” in accordance with Section 6.13(a)(i) above and any supplemental indenture related to a consent solicitation pursuant to Section 6.14(b) in which the changes do not become effective until Closing) or agree to any change or modification of any existing certificate, document, instrument or agreement, (vii) cause any representation or warranty in this Agreement to be breached by the Company or any of the Company Subsidiaries, (viii) conflict with the organizational documents of the Company or any Company Subsidiary or any Laws, (ix) 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 the Company or any of the Company Subsidiaries is a party, (x) require the delivery of any opinion of counsel, or (xi) require the Company or any Company Subsidiary to prepare any financial statements or information that cannot be produced or provided without unreasonable cost or expense and are not prepared in the ordinary course of its financial reporting practice. Nothing contained in this Section 6.13 or otherwise shall require the Company or any Company Subsidiary, prior to the ~~Closing~~ Effective Time, to be an issuer or other obligor with respect to such financing. Parent shall, promptly upon request by the Company, reimburse the Company or any Company Subsidiary for ~~which it has not received prior reimbursement~~ all reasonable and documented out-of-pocket costs incurred by them or ~~on behalf~~ their respective representatives in connection with such cooperation and shall reimburse, indemnify and hold harmless the Company and Company Subsidiaries and their respective representatives from and against any and all losses actually suffered or incurred by them in connection with the arrangement of ~~Buyer~~such financing, any action taken by them at the request of Parent or ~~would cause Seller~~ its representatives pursuant to this Section 6.13 and Section 6.14 and any information used in connection therewith, except to the extent resulting from the gross negligence, fraud or willful misconduct of the Company or any Company Subsidiary or any of its ~~Affiliates~~ their respective representatives, arising from incorrect or misleading information provided by the Company or any Company Subsidiary or any of its their respective representatives. (b) The Company hereby consents to ~~breach this Agreement~~ use of all of its and the Company Subsidiaries’ logos in connection with any financing (subject to the Company having a reasonable opportunity for advance review of and consultation with respect to such use); provided that such logos are used solely in a manner that is reasonable and customary for such purposes and solely in a manner that is not intended to, nor reasonably likely to, harm or ~~become unable to satisfy~~ disparage the Company or the Company Subsidiaries or the Company’s or the Company Subsidiaries’ reputation or goodwill. (c) 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 ~~the Closing, (B) nothing herein shall require such cooperation from Seller or its Affiliates to the extent it would unreasonably interfere with the ongoing operations~~ any of ~~Seller or its Affiliates and (C) there shall be no action, Liability or obligation of Seller or its Affiliates~~ Parent’s obligations under ~~any certificate, agreement, arrangement, document or instrument relating to the Financing~~this Agreement. Notwithstanding anything to the contrary in this ~~Section 6.10~~Agreement, ~~neither Seller nor its Affiliates shall be in~~ the Company’s breach of any of the ~~covenant~~ covenants required to be performed by it under this Section 6.13 shall not be considered in determining the satisfaction of the condition set forth in ~~this~~ Section ~~6.10 if it has acted in good faith~~ 7.2(b), unless such breach is the primary cause of Parent being unable to ~~comply with~~ obtain the ~~cooperation and assistance set forth herein~~proceeds of any financing at the Closing. (bd) ~~Buyer shall indemnify~~ All non-public or otherwise confidential information regarding the ~~Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred~~ Company or ~~suffered by, or asserted against,~~ any of ~~them~~the Company Subsidiaries obtained by Parent, ~~directly~~ the Parent Subsidiaries or ~~indirectly relating to~~any of their respective Representatives pursuant to this Section 6.13 shall be kept confidential in accordance with the Confidentiality Agreement; provided that such information may be disclosed (i) on a confidential basis to prospective lenders, ~~arising out of~~ underwriters, initial purchasers, placement agents, dealer managers, solicitation agents, information agents and depositary or ~~resulting from the arrangement~~ other agents during syndication and marketing of the ~~Financing, any other~~ financing ~~and/or~~ subject to such entities entering into confidentiality obligations with Parent on terms similar to those in the provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement. (c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii) Confidentiality Agreement and (ivii) ~~of Section 6.10(a) as may be necessary such that the Required Information does not contain any untrue statement of material fact or omit~~ on a confidential basis to ~~state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading~~rating agencies.

Appears in 1 contract

Sources: Merger Agreement (Tapestry, Inc.)

Financing Cooperation. (a) For purposes of this Section 6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise. Prior to the Closing, Seller The Company shall, and shall ~~use reasonable best efforts to~~ cause ~~each of~~ its ~~Affiliates~~ Subsidiaries to, and shall cause its and their Representatives to, ~~use reasonable best efforts to~~ provide ~~to Buyer such~~ all cooperation reasonably requested by ~~Buyer and~~ Parent in connection with financing arrangements (including, without limitation, assumptions, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations or prepayments of existing financing arrangements) as Parent may reasonably ~~required~~ determine necessary or advisable in connection with the ~~Financing~~ completion of the Merger or the ~~Alternate Financing, including (to the extent reasonably requested and reasonably required):~~ other transactions contemplated hereby. Such cooperation shall include (i) participating in a ~~customary and~~ reasonable number of meetings, ~~presentations,~~ presentations and due diligence ~~sessions~~sessions in connection with such financing arrangements, ~~drafting sessions, road shows and sessions with rating agencies;~~ (ii) ~~assisting~~ providing reasonable and timely assistance with the preparation of materials for ~~rating agency~~ presentations, offering ~~documents, private placement memoranda, bank information~~ memoranda, prospectuses ~~(registered or otherwise)~~ and similar documents ~~for the Financing, including execution and delivery of customary representation letters~~ required in connection with ~~an audit~~ such financing arrangements (including relating to the preparation of ~~the Business and auditors comfort letter;~~ pro forma financial statements), (iii) as promptly as reasonably practical, and in no any event ~~later than March 31, 2013~~at least 20 days prior to the Closing Date, furnishing ~~Buyer~~ Parent and any of its financing sources with (xA) audited consolidated balance sheets ~~for the Business as at December 31, 2011~~ and ~~2012, and (y)~~ related audited consolidated statements of operations, comprehensive income (loss), changes in equity and cash flows for each of the ~~Business~~ three most recently completed fiscal years of the Company ended at least sixty (60) days prior to the Closing Date, in each case, prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year and (B) unaudited consolidated balance sheets and related condensed consolidated statements of operations, comprehensive income, changes in equity and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for the ~~three~~ Company for each subsequent fiscal quarter ended at least forty (340) ~~years ended December 31~~days prior to the Closing Date (other than the fourth fiscal quarter of any fiscal year), ~~2012~~ in each case, prepared in accordance with GAAP and reviewed by the Company’s independent public accountants, and (zC) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with financial and any other information regarding the ~~Business~~ Company and ~~the Assets as~~ its Subsidiaries that Parent may be reasonably requested by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities contemplated by the Financing, or as otherwise reasonably required request in connection with the arrangement or execution of the Financing, or as otherwise necessary in order to assist in receiving customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt or equity securities contemplated by the Financing (all such information in clause (iii) and this clause (iv)) obtain customary authorization letters, ~~including the Carve-Out Financials~~comfort letters and accountants’ consent letters as may be requested by Parent, ~~the “Required Information”);~~ and (v) ~~providing information relating~~ to the extent requested in writing at least ten (10) Business ~~that is reasonably available~~ Days prior to it the Closing, delivering at least three Business Days prior to ~~assist in~~ the ~~preparation of any credit agreements, indentures, purchase agreements, currency or interest hedging arrangements,~~ Closing all documentation and other ~~definitive financing documents, officer’s certificates, customary closing documents, or other certificates or documents~~ information with respect to the ~~Financing contemplated~~ Company and its Subsidiaries that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the ~~Financing as may be reasonably requested by Buyer; (vi) furnishing Buyer~~ USA PATRIOT Act. Notwithstanding the foregoing, the Company and its Subsidiaries and their ~~Financing sources as promptly as practicable all financial information~~ respective Representatives shall not be required to enter into any letter, certificate, document, agreement or instrument (other than customary authorization and representation letters) that will be ~~delivered pursuant~~ effective prior to the ~~Financing Letter~~ Closing and ~~monthly financial statements for the Business (to the extent prepared~~ nothing in ~~the ordinary course of business); (vii~~this Section 5.14(a) assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Financing, as reasonably requested by Buyer; provided that (A) nothing herein shall require (x) such cooperation to the extent it would ~~require Seller~~ disrupt unreasonably the business or operations of the Company or any of its ~~Affiliates~~ Subsidiaries or require any of them to ~~waive~~ take any actions that would reasonably be expected to violate applicable Law, contract or ~~amend~~ Organizational Documents, (y) the board of directors or similar governing body of the Company or any ~~terms~~ Subsidiary of ~~this Agreement~~the Company to adopt resolutions approving any letter, certificate, document, agreement or instrument (other than customary authorization and representation letters to the extent necessary) that will be effective prior to the Closing or (z) the Company or any of its Subsidiaries to incur any ~~Liabilities, pay any fees, reimburse any expenses, in each case, with respect to the Financing,~~ liability prior to the Closing for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of ~~Buyer~~Parent. It is understood and agreed that a failure to consummate a financing of the type described in the first sentence of this Section 5.14(a) shall not, ~~or would cause Seller or any~~ in and of ~~its Affiliates to breach this Agreement or become unable~~ itself, constitute a failure by the Company to satisfy ~~a condition to the Closing, (B) nothing herein shall require such cooperation from Seller or~~ its ~~Affiliates to the extent it would unreasonably interfere with the ongoing operations of Seller or its Affiliates and (C) there shall be no action, Liability or obligation of Seller or its Affiliates~~ obligations under ~~any certificate, agreement, arrangement, document or instrument relating to the Financing. Notwithstanding anything to the contrary in~~ this Section ~~6.10, neither Seller nor its Affiliates shall be in breach of the covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth herein~~5.14(a). (b) ~~Buyer~~ The Company shall, and shall ~~indemnify~~ cause its Subsidiaries to, use reasonable best efforts to, as soon as reasonably practicable after (and not prior to) the ~~Seller Indemnitees from~~receipt of a written request from Parent to do so, ~~against~~ on the terms and conditions specified by Parent and in compliance with all applicable terms and conditions of the applicable Company Debt Agreement, seek an amendment or amendments to any of the Company Debt Agreements or pursue any approach chosen by Parent to the assumption, defeasance, satisfaction and discharge, constructive satisfaction and discharge, refinancing, repayment, repurchase, redemption, termination, amendment, guarantee, purchase, unwinding or other treatment of, the Company Debt Agreements and the indebtedness incurred pursuant thereto, in each case, subject to the occurrence of the Closing (any such transaction, a “Debt Transaction”). The Company shall not be required to take any action in respect of any ~~Losses imposed on~~Debt Transaction until Parent shall have provided the Company with drafts of any necessary documentation required in connection with such Debt Transaction in a form reasonably satisfactory to the Company (collectively, ~~sustained~~the “Debt Transaction Documents”) at least three (3) Business Days prior to the date of such requested action. The Company shall use reasonable best efforts to, and shall cause its Subsidiaries to use reasonable best efforts to, cause its and their respective Representatives to provide cooperation and assistance reasonably requested by Parent in connection with the Debt Transactions (including taking all corporate action reasonably necessary to authorize the execution and delivery of any Debt Transaction Documents to be entered into prior to Closing and delivering all officer’s certificates and legal opinions required to be delivered in connection therewith); provided, that the effectiveness of any such Debt Transaction Documents or, in the case of a notice of prepayment or redemption, such prepayment or redemption, shall be expressly conditioned on the Closing. (c) All material non-public or otherwise confidential information regarding the Company obtained by Parent or any of their respective Representatives pursuant to Section 5.14(a) shall be kept confidential in accordance with the Confidentiality Agreement; provided that the Company agrees that Parent may share non-public or otherwise confidential information with the rating agencies and actual or potential financing sources if the recipients of such information agree to customary confidentiality arrangements, including customary “click through” confidentiality agreements and confidentiality provisions contained in customary bank books and offering memoranda. Parent shall indemnify, defend and hold harmless the Company and its Affiliates, and its and their respective pre-Closing trust managers, directors, officers, employees, agents, representatives and professional advisors, from and against any liability, obligation or loss suffered or incurred by them in connection with any cooperation provided under Section 5.14(a) and any information utilized in connection therewith, except in the event such liabilities, obligations or ~~suffered by~~losses arose out of or result from (A) information furnished in writing by or on behalf of the Company, its Subsidiaries or ~~asserted against~~its or their respective Affiliates or Representatives for use in connection with the debt financing, (B) the bad faith, gross negligence or willful misconduct by the Company, any of ~~them~~its Subsidiaries or any of its or their respective Affiliates or Representatives or (C) the material breach by the Company or its Subsidiaries of its or their obligations under this Agreement (clauses (A) through (C) collectively, ~~directly~~ the “Indemnity Exceptions”). Parent shall, promptly upon request by the Company, reimburse the Company and its Subsidiaries and Representatives for all reasonable, documented and invoiced out-of-pocket costs actually incurred by the Company or ~~indirectly relating to~~its Subsidiaries in connection with any cooperation provided under Section 5.14(a) (including reasonable and documented out-of-pocket auditor’s and attorneys’ fees and expenses, but excluding the costs of the Company’s preparation of its annual quarterly and financial statements and any other information or data and excluding costs arising out of or resulting from the ~~arrangement~~ Indemnity Exceptions). The Company shall, and shall cause its Subsidiaries to deliver all notices and take all other actions to facilitate the termination at the Effective Time of all commitments in respect of each of the ~~Financing,~~ Company Credit Facility and any other ~~financing and/or~~ indebtedness of the ~~provision~~ Company or its Subsidiaries to be paid off, discharged and terminated on the Closing Date as specifically requested by Parent in writing, the repayment in full on the Closing Date of ~~information utilized~~ all obligations in respect of the indebtedness thereunder, and the release on the Closing Date of any Liens securing such indebtedness and guarantees in connection ~~therewith to~~ therewith. In furtherance and not in limitation of the ~~fullest extent permitted by applicable Legal Requirement. (c) Seller will~~ foregoing, the Company and its Subsidiaries shall use ~~its~~ reasonable best efforts to ~~update Required Information provided~~ deliver to ~~Buyer pursuant~~ Parent (i) at least 10 Business Days prior to ~~clauses~~ the Closing Date (~~iii~~or such short period as agreed by Parent), a draft payoff letter with respect to each of the Company Credit Facility and (to the extent requested by the Parent to the Company in writing) any other indebtedness (including mortgages) of the Company or its Subsidiaries to be paid off, discharged and terminated on the Closing Date and (ii) at least one Business Day prior to the Closing Date, an executed payoff letter with respect to each of the Company Credit Facility (the “Payoff Letters”) and such other indebtedness (including mortgages) of the Company or its Subsidiaries to be paid off, discharged and terminated on the Closing Date, in each case in form and substance customary for transactions of this type, from the Persons (or the applicable agent on behalf of the Persons) to whom such indebtedness is owed, which Payoff Letters together with any related release documentation shall, among other things, (x) include the payoff amount (including customary per diem) and (ivy) provide that Liens (and guarantees), if any, granted in connection with the Company Credit Facility or any such other indebtedness of ~~Section 6.10(a) as may~~ the Company to be ~~necessary~~ paid off, discharged and terminated on the Closing Date relating to the assets, rights and properties of the Company and its Subsidiaries securing or relating to such ~~that~~ indebtedness, shall, upon the ~~Required Information does not contain any untrue statement~~ payment of ~~material fact or omit to state any material fact necessary in order to make~~ the ~~statements made therein,~~ amount set forth in the ~~light of~~ applicable Payoff Letter at or prior to the ~~circumstances under which they were made~~Effective Time, ~~not misleading~~be released and terminated.

Appears in 1 contract

Sources: Merger Agreement (Weingarten Realty Investors /Tx/)

Financing Cooperation. 5.23.1 As soon as reasonably practicable and in any event no later than August 31, 2023, Seller shall provide Buyer with (a) ~~For purposes~~ audited financial statements of ~~this Section 6.10,~~ the ~~term “Financing” shall include any Permanent Financing (~~Product Business as ~~defined in the Financing Letter), whether for debt, equity or otherwise. Prior to the Closing, Seller shall,~~ of and shall use reasonable best efforts to cause each of its Affiliates and Representatives to, use reasonable best efforts to provide to Buyer such cooperation reasonably requested by Buyer and reasonably required in connection with the Financing or the Alternate Financing, including (to the extent reasonably requested and reasonably required): (i) participating in a customary and reasonable number of meetings, presentations, due diligence sessions, drafting sessions, road shows and sessions with rating agencies; (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered or otherwise) and similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii) as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer with (x) audited balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) fiscal years ended December 31, ~~2012~~ 2022 and 2021 and (b) unaudited financial statements of the Product Business as of June 30, 2023 and for the six months ended June 30, 2023 and June 30, 2022, in each case together with the notes thereto and prepared in accordance with the requirements for abbreviated financial statements set forth in Rule 3-05(e)(2) of Regulation S-X under the Securities Act of 1933, and (x) all such financial information shall have been prepared in accordance with IFRS, consistently applied, as of the dates and for the periods presented, (y) in the case of clause (a), shall have been audited in accordance with U.S. generally accepted auditing standards and accompanied by unqualified opinions of independent accountants for the Product Business and (z) in the case of clause (b) shall have been reviewed by the Product Business’ independent public accountants as provided in AS Section 4105, Reviews of Interim Financial Information (collectively, with the Required Additional Financial Statements (as defined below), the “Required Financial Statements”). As soon as reasonably practicable and no later than (A) 45 days after the end of the applicable fiscal quarter (even if such delivery date occurs after the Closing Date), Seller shall deliver unaudited financial statements for any interim year-to-date period or periods ending on the last day of each fiscal quarter ended after June 30, 2023 and on or prior to the Closing Date (except for the fourth fiscal quarter), together with interim financial statements for the same period in the prior year, which interim financial statements shall be prepared in accordance with IFRS, consistently applied, as of the dates and for the periods presented, and which shall have been reviewed by the Product Business’ independent public accountants as provided in AS Section 4105, Reviews of Interim Financial Information and have been prepared in accordance with the requirements for abbreviated financial statements set forth in Rule 3-05(e)(2) of Regulation S-X under the Securities Act of 1933, and (B) 60 days after December 31, 2023 (only if the Closing Date does not occur prior to December 31, 2023 but, in such case, even if such delivery date occurs after the Closing Date), Seller shall deliver audited financial statements of the Product Business as of and for the year ending December 31, 2023, together with the notes thereto, which audited financial statements shall be prepared in accordance with IFRS, consistently applied, as of the dates and for the periods presented, audited in accordance with U.S. generally accepted auditing standards, accompanied by an unqualified opinion of independent accountants for the Product Business and prepared in accordance with the requirements for abbreviated financial statements set forth in Rule 3-05(e)(2) of Regulation S-X under the Securities Act of 1933. The financial statements described in the two preceding sentences are the “Required Additional Financial Statements.” In addition, if the Closing Date does not coincide with the last day of a fiscal quarter, Seller shall deliver, within ~~forty~~45 days after the end of the fiscal quarter in which the Closing Date occurs, such financial information for the Products Business for the portion of such fiscal quarter ending on the Closing Date that is required by the Buyer to establish an opening balance sheet for the Products Business as of the close of business on the Closing Date or for purposes of preparing pro forma financial statements (which financial information need not be reviewed as set forth above); provided, however, that in no event shall Seller be obligated to deliver any such financial information relating to the Product Business that would be in excess of the information required to prepare abbreviated financial statements for the portion of such fiscal year in accordance with the requirements set forth in Rule 3-~~five (45~~05(e)(2) ~~days~~ of Regulation S-X; provided, further, that if the Closing Date is on or before the 14th day of any calendar month, Seller shall provide such financial information as of the end of the ~~relevant fiscal quarter~~previous calendar month and if the Closing Date is on or after the 15th day of any calendar month, ~~unaudited interim~~ Seller shall provide such financial ~~statements for each fiscal quarter ending~~ information as of the end of the calendar month in which the Closing Date occurs. From the respective dates on which ▇▇▇▇▇ receives the Required Financial Statements until the Closing, Seller will use its commercially reasonable efforts to update any Required Financial Statements provided by it or on its behalf as may be necessary so that such Required Financial Statements are Compliant. Notwithstanding anything to the contrary set forth in this Agreement, in no event shall Seller or any its Affiliates shall be required to include in any of the Required Financial Statements any information that relates to a period of time occurring after ~~January 1~~the Closing. 5.23.2 Seller shall use its commercially reasonable efforts to, ~~2013 (collectively~~and shall cause its Subsidiaries and its and their respective Representatives to use their commercially reasonable efforts to, provide all cooperation in connection with the ~~“Carve-Out Financials”);~~arrangement of the Financing as may be customary and reasonably requested by ▇▇▇▇▇, including using its commercially reasonable efforts with respect to the following: (iva) ~~in addition to~~ reasonably cooperating with the ~~information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing~~ marketing and due diligence efforts of Buyer and the ~~other parties to the~~ Debt Financing ~~Letter with financial and other information regarding the Business and the Assets as may be reasonably requested by Buyer (including~~ Sources Related Parties, in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities contemplated by the Financing, or as otherwise reasonably required each case in connection with the Financing, including by (i) prior to and during the Marketing Period, participating in a reasonable number of meetings upon reasonable request and reasonable notice (including customary one-on-one meetings with the parties acting as lead arrangers for the Financing and senior management and Representatives, with appropriate seniority and expertise, of the Product Business), presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the Debt Financing Sources and rating agencies, as applicable (which meetings, presentations, road shows and sessions shall be scheduled at mutually convenient times), and (ii) assisting in the preparation of (A) any customary offering documents, bank information memoranda, offering memoranda, prospectuses, lender and investor presentations, and similar documents (including with respect to historical and (to the extent based on financial information and data derived from Seller’s and its Subsidiaries’ historical books and records) pro forma financial statements and financial, business, risk factor or other information customarily included in such documents for any of the Financing, including records, data or other information reasonably necessary to support any statistical information or claims relating to the Product Business appearing in such materials and allowing Buyer to prepare any financial projections which are conditions to the availability of the Financing) and (B) materials for rating agency presentations; (b) furnishing, at least four Business Days prior to the Closing, such documentation and information as ~~otherwise necessary~~ is requested in writing by Buyer at least nine business days prior to the Closing to the extent required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and 31 C.F.R. §1010.230, in order to ~~assist~~ satisfy the conditions set forth in ~~receiving~~ the Conditions Exhibit; (c) taking reasonable steps to facilitate the granting of guarantees and the pledging, granting of security interests in, and otherwise granting of liens on, the assets of the Product Business which are conditions to the availability of the Financing pursuant to customary ~~“comfort”~~ guarantee, pledge and security agreements to be effective from and after the Closing; and (d) providing customary authorization letters or auditor representation letters and using its commercially reasonable efforts to obtain from its advisors and independent accountants, prior to the commencement of the Marketing Period, drafts of customary comfort letters (including “negative assurance” comfort and change period comfort) ~~from~~ which such advisors and independent accountants ~~in connection~~ are prepared to issue upon completion of customary procedures with the offering(s) of debt or equity securities contemplated by the Financing (all such information in clause (iii) and this clause (iv), including the Carve-Out Financials, the “Required Information”); (v) providing respect to financial information relating to the Product Business that is reasonably available to it to assist in the preparation of any credit agreements, indentures, 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 ~~Buyer; (vi) furnishing~~ Buyer and the Debt Financing Sources, consents of independent accountants for use of their Financing sources as promptly as practicable all financial information required to be delivered pursuant to the Financing Letter and monthly financial statements for the Business (to the extent prepared reports in the ordinary course of business); (vii) assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items any materials relating to the Financing, ~~as reasonably requested~~ any other equity or debt financing by ~~Buyer~~Buyer (or its Subsidiaries) or Bausch Health Companies Inc. (or its Subsidiaries) or in connection with any filings made with the Securities and Exchange Commission by Buyer (or its Subsidiaries) or Bausch Health Companies Inc. (or its Subsidiaries) under the Securities Act of 1933 or the Securities Exchange Act of 1934, in each case where financial statements of the Products Business are required to be or are customarily included or incorporated by reference, or other documents and instruments; ~~provided~~ provided, however, that ~~(A)~~ in no event shall Seller be obligated to deliver financial information relating to the Product Business in connection with a Financing other than the Required Financial Statements and the Required Additional Financial Statements. 5.23.3 Notwithstanding the foregoing, nothing ~~herein~~ in Section 5.23.2 above shall require ~~such cooperation~~ the Seller or any of its Affiliates to: (a) take any action in respect of the Financing to the extent it that such action would cause any condition to Closing set forth in Article 7 to fail to be satisfied by the End Date or otherwise result in a breach of this Agreement by Seller; (b) take any action in respect of the Financing that would (i) conflict with or violate Seller’s or any if its Subsidiary’s organizational documents or any applicable Law, (ii) result in a breach, violation, default under, or would give to another Person any right of termination, amendment, acceleration or cancellation under, or result in the creation of Encumbrances in connection with, any material Contract to which Seller or any of its Affiliates are bound or (iii) in the reasonable judgment of the Seller, require Seller or any of its Affiliates to ~~waive~~ disclose information subject to attorney-client, attorney work product or ~~amend any terms of this Agreement, incur any Liabilities, pay any fees, reimburse any expenses~~other legal privilege, in each ~~case, with respect~~ case if Seller or such Affiliate shall have used commercially reasonable efforts to disclose such information in a way that would not waive such privilege or protection; (c) take any action to the ~~Financing, prior to~~ extent such action would unreasonably interfere with the ~~Closing for which it has not received prior reimbursement by~~ business or ~~on behalf~~ operations of ~~Buyer~~Seller or its Affiliates; (d) execute and deliver, or ~~would~~ cause any director, officer, employee or shareholder of Seller or any of its Affiliates to ~~breach this Agreement~~ execute and deliver, any letter, agreement, registration statement, document or ~~become unable~~ certificate in connection with the Financing (except (i) customary authorization and auditor representation letters and (ii) by any person who will be an officer of the Product Business after the Closing) in each case that is not contingent on, or that would be effective prior to, the occurrence of the Closing; (e) pay any commitment fee or other fee or payment to ~~satisfy a condition~~ obtain consent or incur any liability with respect to or cause or permit any Encumbrance to be placed on any of their respective assets in connection with the Financing prior to the ~~Closing~~Closing Date (except customary authorization and auditor representation letters); or (f) issue any bank information memoranda, lender presentations, offering memoranda, or similar documents including disclosure or financial statements, nor shall any such bank information memoranda, lender presentations, offering memoranda or similar documents include disclosure or financial statements that, (Bi) ~~nothing herein shall require such cooperation from~~ with respect to the Product Business, reflect Seller or its Affiliates to (other than the ~~extent it would unreasonably interfere with~~ Purchased Subsidiary) as the ~~ongoing operations~~ obligor(s) in respect of any Financing or (ii) are in the name of Seller or its Affiliates. 5.23.4 Buyer shall promptly, upon request by ▇▇▇▇▇▇, reimburse Seller for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by Seller or any of its Affiliates or any of their Representatives in connection with the cooperation of Seller and its Affiliates contemplated by this Section 5.23 and shall indemnify and hold harmless Seller, its Affiliates and ~~(C) there~~ their respective Representatives from and against any and all Losses actually suffered or incurred by any of them of any type in connection with the arrangement of any Financing and any information used in connection therewith, except, to the except, to the extent such Losses arise from the material breach by Seller of this Section 5.23 or result from fraud or willful misconduct of the Seller, any of its Subsidiaries or any of their respective Representatives or Affiliates, and the foregoing obligations shall survive termination of this Agreement. 5.23.5 Seller hereby consents, on behalf of itself and its Subsidiaries, to the use of Seller’s and its Subsidiaries’ logos in connection with the Financing; provided that such logos are used in a manner that is not intended to harm or disparage Seller’s or its Subsidiaries’ reputation or goodwill. Seller shall be ~~no action, Liability or obligation of~~ given reasonable opportunity to review and comment on any materials that include information about Seller or its Affiliates ~~under~~ prepared in connection with the Financing and Buyer shall consider any ~~certificate~~such comments in good faith. 5.23.6 All information provided by Seller or any of its Affiliates or any of their Representatives pursuant to this Section 5.23 shall be kept confidential in accordance with the Confidentiality Agreement, ~~agreement, arrangement, document or instrument relating~~ except that Buyer shall be permitted to disclose such information to the ~~Financing. Notwithstanding anything~~ financing sources, other potential sources of capital, rating agencies, prospective lenders (but not prospective investors in any debt securities offering other than as is necessary or desirable to be included in an offering memorandum or other marketing materials and to which Seller has not reasonably objected) during syndication of the Financing or any permitted replacement, amended, modified or Alternative Financing subject to the ~~contrary~~ potential sources of capital, ratings 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); provided, that prior to any disclosure of any such information by Buyer or any of its Affiliates pursuant to this Section ~~6.10~~5.23.6 the disclosure of which has not previously been approved by Seller, ~~neither~~ Buyer shall provide Seller ~~nor its Affiliates shall be in breach~~ copies of the ~~covenant set forth~~ proposed disclosure of such information not less than two Business Days in ~~this Section 6.10 if it has acted~~ advance of such disclosure for review and consider in good faith any comments provided by Seller to ~~comply~~ such proposed disclosures (provided that (i) such comments shall regularly focus on the factual correctness of facts contained in such information and (ii) Seller shall use reasonable efforts to provide Buyer with any comments as expeditiously as possible); provided, further, that notwithstanding the ~~cooperation~~ foregoing, Buyer and ~~assistance set forth herein. (b) Buyer shall indemnify~~ its Affiliates and Bausch Health Companies Inc. and its Subsidiaries may include or incorporate by reference the financial statements of the Products Business provided by Seller ~~Indemnitees from, against and~~ under Section 5.23.1 in ~~respect of~~ any ~~Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly~~ materials relating ~~to, arising out of or resulting from the arrangement of~~ to the Financing, any other equity or debt financing ~~and/or the provision of information utilized~~ by Buyer (or its Subsidiaries) or Bausch Health Companies Inc. (or its Subsidiaries) or in connection ~~therewith to~~ with any filings made by Buyer (or its Subsidiaries) or Bausch Health Companies Inc. (or its Subsidiaries) under the ~~fullest extent permitted by applicable Legal Requirement. (c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii) and (iv)~~ Securities Act of ~~Section 6.10(a) as may be necessary such that~~ 1933 or the ~~Required Information does not contain any untrue statement~~ Securities Exchange Act of ~~material fact or omit to state any material fact necessary in order to make the statements made therein~~1934, in ~~the light~~ each case where financial statements of the ~~circumstances under which they were made, not misleading~~Products Business are required to be or are customarily included or incorporated by reference.

Appears in 1 contract

Sources: Stock and Asset Purchase Agreement (Bausch & Lomb Corp)

Financing Cooperation. ~~(a) For purposes of this Section 6.10,~~ During the ~~term “Financing” shall include any Permanent Financing (as defined in~~ Interim Period the ~~Financing Letter), whether for debt, equity or otherwise. Prior to the Closing, Seller~~ Sellers shall, and shall use reasonable best efforts to cause ~~each of its Affiliates~~ the TCG Group members and ~~Representatives~~ their advisors to, provide to the Purchaser and to any lenders or prospective lenders under the Financing Agreements (the “Finance Providers”) and their respective advisors, such cooperation as the Purchaser may reasonably request in connection with syndicating and implementing the financing contemplated by the Acquisition Facilities and any Alternative Acquisition Facility (collectively, the “Financing Agreements”). During the Interim Period the Sellers shall (and shall use reasonable best efforts to ~~provide to Buyer such cooperation reasonably requested by Buyer and reasonably required in connection with~~ cause the ~~Financing or the Alternate Financing, including (to the extent reasonably requested and reasonably required~~TCG Group members to): (a) provide (i) ~~participating in a customary and reasonable number of meetings~~audited, presentations, due diligence sessions, drafting sessions, road shows and sessions with rating agencies; (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered or otherwise) and similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii) as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer with (x) audited consolidated balance sheets ~~for the Business as at December 31, 2011~~ and ~~2012, and (y) audited~~ related statements of ~~income~~ income, stockholders´ equity and cash flows ~~for~~ of the ~~Business~~ TCG Group, in each case, for the three (3) fiscal years ended ~~December 31, 2012~~ at least ninety (90) days before the Closing Date (including an unqualified audit opinion thereon) and prepared in accordance with IFRS; (zii) within ~~forty-~~forty five (45) days of the ~~end~~ last day of each completed fiscal quarter referenced below (or, in the case of the ~~relevant~~ fourth fiscal quarter of any fiscal year, within sixty (60) days of the last day of such fourth fiscal quarter), ~~unaudited interim~~ unaudited, consolidated balance sheets and related statements of income, stockholders´ equity and cash flows of the TCG Group, prepared in accordance with IFRS, as well as EBITDA for each quarterly period, highlighting reconciling items between management and legal operating income that may affect EBITDA calculations as adjusted, for each completed fiscal quarter since the last day of the last fiscal year covered by the applicable audited financial statements referred to in the preceding clause (i); and (iii) within thirty (30) days of the date hereof (if not already provided at the time of execution of this Agreement), unaudited, consolidated balance sheets and related statements of income, stockholders´ equity and cash flows of the TCG Group for the third and fourth quarters of 2012, respectively, prepared in accordance with IFRS, as well as EBITDA for each ~~fiscal quarter ending after January 1~~quarterly period, ~~2013 (collectively~~highlighting reconciling items between management and legal operating income that may affect EBITDA calculations as adjusted. Attached as Schedule 8.3(a) are samples accepted by the Purchaser of the reporting forms that the TCG Group may use for the delivery of the information set forth in Clause 8.3(a), provided that such information shall correspond to the ~~“Carve-Out Financials”~~dates and periods required by Clause 8.3(a);; and (ivb) provide reasonable assistance in ~~addition to~~ connection with the preparation of information ~~required pursuant to clause (iii)~~memorandum, ~~above~~pro forma financial information and rating agency materials, including furnishing as promptly as ~~reasonably practical, furnishing Buyer and the other parties to the Financing Letter with~~ practicable any financial and other pertinent information regarding the ~~Business and the Assets~~ TCG Group as may be reasonably requested by ~~Buyer~~ the Purchaser for such purposes. By virtue of the execution of this Agreement by the Parties hereto, Sellers’ irrevocably authorize, without any further action on the part of the Sellers or any member of the TCG Group, (~~including in connection with Buyer’s preparation~~ i) the dissemination of ~~pro forma~~ the financial ~~statements), including unaudited interim financial statements, financial data, projections, audit reports~~ and other information about the TCG Group referred to above to the Finance Providers and rating agencies for use in the information memorandum and other materials and (ii) the public filing and dissemination of information about the TCG Group to the extent the Purchaser is required to do so by virtue of the ~~type required by Regulation S-X and Regulation S-K~~ use of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities 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 “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt or equity securities contemplated by the Financing (all such information in ~~clause (iii) and this clause (iv), including the Carve-Out Financials, the “Required Information”); (v) providing~~ such information relating to the Business that is reasonably available to it to assist in the preparation of any credit agreements, indentures, purchase agreements, currency or interest hedging arrangements, other definitive financing documents, officer’s certificates, customary closing documents, memorandum or other certificates or documents with respect to the Financing contemplated by the Financing as may be reasonably requested by Buyer; (vi) furnishing Buyer and their Financing sources as promptly as practicable all financial information required to be delivered pursuant to the Financing Letter and monthly financial statements for the Business (to the extent prepared in the ordinary course of business); (vii) assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Financing, as reasonably requested by Buyer; provided that (A) nothing herein shall require such cooperation to the extent it would require Seller or any of its Affiliates to waive or amend any terms of this Agreement, incur any Liabilities, pay any fees, reimburse any expenses, in each case, with respect to the Financing, prior to the Closing for which it has not received prior reimbursement by or on behalf of Buyer, or would cause Seller or any of its Affiliates to breach this Agreement or become unable to satisfy a condition to the Closing, (B) nothing herein shall require such cooperation from Seller or its Affiliates to the extent it would unreasonably interfere with the ongoing operations of Seller or its Affiliates and (C) there shall be no action, Liability or obligation of Seller or its Affiliates under any certificate, agreement, arrangement, document or instrument relating to the Financing. Notwithstanding anything to the contrary in this Section 6.10, neither Seller nor its Affiliates shall be in breach of the covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth hereinmaterials. (b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement of the Financing, any other financing and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement. (c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii) and (iv) of Section 6.10(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 made therein, in the light of the circumstances under which they were made, not misleading.

Appears in 1 contract

Sources: Share Sale and Purchase Agreement (Revlon Inc /De/)

Appears in 1 contract

Sources: Equity Purchase Agreement (Caseys General Stores Inc)

Financing Cooperation. (a) ~~For purposes of this Section 6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise.~~ Prior to the Closing, ~~Seller~~ the Company shall, and shall cause its Affiliates to, and shall use its commercially reasonable ~~best~~ efforts to cause ~~each of its Affiliates~~ their respective directors, officers, employees, accountants, counsel, investment bankers and ~~Representatives~~ consultants (collectively, “Representatives”) to, ~~use reasonable best efforts to~~ provide to ~~Buyer such~~ the Purchaser all timely cooperation reasonably requested by ~~Buyer~~ the Purchaser in causing the conditions and covenants in the Debt Financing Commitment to be satisfied and such cooperation as is otherwise necessary or reasonably ~~required~~ requested by the Purchaser in connection with obtaining the Debt Financing ~~or the Alternate Financing~~in accordance with its terms, including ~~(to the extent reasonably requested and reasonably required):~~cooperation that consists of: (i) ~~participating in a customary~~ (A) furnishing the Purchaser and ~~reasonable number of meetings, presentations, due diligence sessions, drafting sessions, road shows and sessions with rating agencies; (ii) assisting with~~ the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered or otherwise) and similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii) Debt Financing Sources as promptly as ~~reasonably practical~~practicable with audited consolidated balance sheets and related statements of earnings, members’ equity, cash flows and related notes of the Company prepared in accordance with GAAP (other than with respect to the Interim Company Financial Statements and the Subsequent Financial Statements, adjustments identified in Section 4.6 of the Company Disclosure Letter, which the Purchaser acknowledges have not been, and in ~~no event later than March 31~~the case of the Subsequent Financial Statements will not be, ~~2013, furnishing Buyer with (x~~incorporated in the Interim Company Financial Statements and the Subsequent Financial Statements) ~~audited balance sheets~~ for the ~~Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3)~~ two most recently completed fiscal years ended ~~December 31~~at least 90 days before the Closing Date, ~~2012 and (z) within forty-five~~ and, for each fiscal quarter after the date hereof ended at least forty (45) days prior to the Closing Date and for the comparable quarter of the prior fiscal year, unaudited consolidated balance sheets of the Company as of the end of ~~the relevant fiscal quarter, unaudited interim financial statements for each~~ such fiscal quarter and the related unaudited statements of earnings, members’ equity, cash flows and related notes, in each case prepared in accordance with GAAP (other than with respect to the Interim Company Financial Statements and the Subsequent Financial Statements, adjustments identified in Section 4.6 of the Company Disclosure Letter, which the Purchaser acknowledges have not been, and in the case of the Subsequent Financial Statements will not be, incorporated in the Interim Company Financial Statements and the Subsequent Financial Statements, and subject to normal year-end adjustments) and using the same accounting principles, policies, methods, practices, procedures, classifications, categories, estimates, judgments and assumptions as were used in preparing the Audited Financial Statements, (B) assisting the Purchaser in preparing pro forma financial information 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 forty (45) days before the Closing Date, prepared after ~~January 1, 2013~~ giving effect to the transactions contemplated hereby (including the combination of the businesses of the Purchaser and the Company) and the Debt Financing as if such transactions and the Debt 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) (collectively, the “~~Carve-Out Financials~~Pro Forma Financial Information”); ) and (ivC) assisting the Purchaser in ~~addition to~~ the ~~information required pursuant to clause (iii)~~preparation of customary rating agency presentations, ~~above~~lender presentations, ~~as promptly as reasonably practical~~customary bank offering memoranda, ~~furnishing Buyer~~ and ~~the other parties to the Financing Letter with~~ syndication memoranda, including business and financial ~~and other information regarding the Business and the Assets as may be~~ projections reasonably requested by ~~Buyer (including~~ the Purchaser or the Debt Financing Sources, in ~~connection with Buyer’s preparation of pro forma financial statements)~~each case, including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities contemplated by the Financing, or as otherwise reasonably required in connection with the ~~Financing~~Debt Financing and other marketing materials or memoranda, including business and financial projections reasonably requested by the Purchaser or ~~as otherwise necessary~~ the Debt Financing Sources, in ~~order to assist in receiving customary “comfort” (including “negative assurance” comfort) from independent accountants~~ each case, in connection with the ~~offering(s) of debt or equity securities contemplated by the~~ Debt Financing (all such information ~~in clause (iii) and~~ required to be delivered pursuant to this ~~clause (iv~~Section 6.18(a)(i), ~~including~~ together with any replacements or restatements thereof, and supplements thereto, reasonably requested by the ~~Carve-Out Financials~~Purchaser if any such information would go stale or otherwise be unusable under customary practices for such purposes, the “Required Information”); (vii) ~~providing information relating~~ participating in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, the Debt Financing and senior management and Representatives, with appropriate seniority and expertise, of the Company), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Debt Financing; (iii) executing and delivering customary authorization letters (including representations with respect to material non-public information) to the ~~Business that is reasonably available~~ Debt Financing Sources authorizing the distribution of information to ~~it to assist in the preparation of~~ prospective lenders or investors; (iv) executing and delivering any securities purchase agreement, credit ~~agreements~~agreement, ~~indentures~~indenture, ~~purchase agreements~~note, guarantee, pledge and security document, supplemental indenture, currency or interest rate hedging ~~arrangements~~arrangement, other definitive financing ~~documents~~document, ~~officer’s certificates, customary closing documents, or~~ representation letter to auditors and other certificates or documents ~~with respect to the Financing contemplated by the Financing~~ and back-up therefor and for legal opinions as may be reasonably requested by ~~Buyer~~the Purchaser or the Debt Financing Sources or their respective counsel (including consents of accountants for use of their reports in any materials relating to the Debt Financing); provided that none of the Company or its respective officers or employees shall be required to execute any document in connection with this Section 6.18(a)(iv) that would be effective at any time before the time immediately prior to the Closing; (v) using commercially reasonable efforts to cooperate with Purchaser and Purchaser’s efforts to obtain customary and reasonable 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 Purchaser and its Representatives to all owned real property and leased real property) as reasonably requested by Purchaser; (vi) ~~furnishing Buyer~~ taking all actions reasonably necessary to (x) permit the agents under the Purchaser’s asset-based loan facility to conduct appraisals and ~~their Financing sources as promptly as practicable all financial information required~~ field audits of the Company’s accounts receivable and inventory suitable to be ~~delivered pursuant to the Financing Letter and monthly financial statements~~ pledged as collateral for the ~~Business (~~Purchaser’s asset-based loan facility and otherwise permit such agents and the Debt Financing Sources to evaluate the Company’s current assets, inventory, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements to the extent ~~prepared~~ customary and reasonable, and (y) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the ~~ordinary course of business)~~foregoing; provided that such accounts and agreements shall not be effective prior to the Closing; (vii) ~~assisting Buyer~~ taking all customary corporate actions, subject to ~~obtain waivers~~the concurrent occurrence of the Closing, ~~consents~~reasonably requested by the Purchaser to permit the consummation of the Debt Financing; (viii) obtaining customary payoff letters, ~~estoppels~~ in form and ~~approvals~~ substance reasonably satisfactory to Purchaser, Lien terminations and other instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all Company Indebtedness; (ix) furnishing the Purchaser and the Debt Financing Sources promptly with all documentation and other information which any lender providing or arranging Debt Financing has reasonably requested and that such lender has determined is required by regulatory authorities in connection with the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act; (x) facilitating the pledging of collateral in connection with the Debt Financing, including executing and delivering any customary pledge and security documents, currency or interest hedging arrangements or other definitive documents, certificates, legal opinions, surveys and title insurance and documents as may be reasonably requested by Purchaser to facilitate the pledging of collateral from ~~other parties to Contracts, material Leases~~ and ~~Easements, and Encumbrances to which~~ after the ~~Assets or~~ Closing (provided that any obligations contained in such documents shall be effective no earlier than as of the ~~Business are bound~~Closing); and (~~viii~~xi) otherwise cooperating with ~~Buyer in~~ the marketing efforts of Purchaser and its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to Debt Financing Sources for any of the ~~Financing,~~ Debt Financing as necessary or reasonably requested by ~~Buyer~~the Purchaser or its Debt Financing Sources; provided that (Ax) nothing ~~herein~~ in this Section 6.18 shall require such cooperation to the extent it would require the Seller ~~or any of its Affiliates~~ and the Company to waive or amend any terms of this Agreement, incur any Liabilities, pay any fees, reimburse any expenses, in each case, with respect to the Financing, prior to the Closing for which it has not received prior reimbursement by or on behalf of Buyer, or would cause Seller or any of its Affiliates to breach this Agreement or become unable to satisfy a condition to the Closing, (By) nothing herein shall require such cooperation from ~~Seller~~ the Seller, the Company or ~~its~~ their respective Affiliates to the extent it would unreasonably interfere with the ongoing operations of ~~Seller~~ the Seller, the Company or ~~its Affiliates~~ their respective Affiliates, or would reasonably be expected to result in a violation of Law or loss of attorney-client privilege and (Cz) ~~there shall be~~ no ~~action, Liability~~ liability or obligation of ~~Seller~~ the Company or any of its ~~Affiliates~~ respective Affiliates, or any of their respective Representatives, under any certificate, agreement, arrangement, document or instrument relating to the ~~Financing. Notwithstanding anything~~ Debt Financing shall be effective until the Closing (except to the ~~contrary~~ extent Purchaser has provided the indemnity referenced in ~~this~~ Section ~~6.10, neither Seller nor its Affiliates shall be in breach of the covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth herein~~6.18(b)). (b) ~~Buyer~~ The Purchaser shall indemnify and hold harmless the ~~Seller Indemnitees from~~Seller, the Company, their Affiliates and their respective Representatives from and against any and all losses, claims, damages or liabilities suffered or incurred by them in ~~respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from~~ connection with the arrangement of the ~~Financing,~~ Debt Financing (including any ~~other financing and/or the provision of~~ action taken in accordance with this Section 6.18) and any information utilized in connection ~~therewith~~ therewith, other than with respect to the ~~fullest~~ preparation of historical financial statements of the Company or to the extent ~~permitted~~ any of the foregoing arises from (i) the willful misconduct, gross negligence or material breach of its obligations under this Agreement by ~~applicable Legal Requirement~~any of the Seller, the Company (prior to Closing), their Affiliates or their respective Representatives, or (ii) any information provided prior to the Closing by any of the Seller, the Company, their Affiliates or their respective Representatives. The Purchaser shall reimburse the Seller and the Company for all of their documented reasonable costs and expenses incurred by the Seller, the Company or their Affiliates in connection with this Section 6.18 on or prior to the Closing or promptly following the Closing or the termination of this Agreement pursuant to Section 9.1 (the “Reimbursement Obligation”). (c) ~~Seller will use~~ The Company shall or shall cause its ~~reasonable best efforts~~ Affiliates to ~~update~~ supplement any Required Information ~~provided~~ pertaining to ~~Buyer pursuant~~ the Company on a reasonably current basis to ~~clauses (iii) and (iv)~~ the extent that any such information, to the Knowledge of ~~Section 6.10(a) as may be necessary such that~~ the ~~Required Information does not contain~~ Company, contains any ~~untrue statement~~ material misstatement of ~~material~~ fact or ~~omit~~ omits to state any material fact necessary ~~in order~~ to make such information not materially misleading. The Company hereby consents to the ~~statements made therein,~~ reasonable use of its and its Affiliates’ logos in connection with the ~~light~~ 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 any of ~~the circumstances under which they were made, not misleading~~its Affiliates or their reputation or goodwill.

Appears in 1 contract

Sources: Equity Purchase Agreement (Nci Building Systems Inc)

Financing Cooperation. (a) ~~For purposes of this~~ Subject in all cases to Section ~~6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter~~6.19(b), ~~whether for debt~~from the date hereof until the Closing and in connection with any contemplated obtainment of Debt Financing, ~~equity or otherwise. Prior to the Closing~~at Purchaser’s expense, Seller ~~shall, and~~ shall use reasonable best efforts to provide (and to cause each Divesting Entity and each of ~~its Affiliates and~~ their respective Representatives toto provide) to Purchaser, ~~use reasonable best efforts to provide to Buyer such~~ all customary cooperation reasonably requested by ~~Buyer~~ Purchaser to assist Purchaser and its Affiliates with respect to the arrangement of the Debt Financing or any other debt securities, loan financing or other debt or equity financing pursued by Purchaser or any of its Affiliates in lieu of all or a portion of the Debt Financing (to the extent permitted hereunder) (any such financing, “Permanent Financing”), including: (i) reasonably ~~required~~ assisting in the preparation for, and causing members of senior management of the Business to participate in, a reasonable number of lender or investor marketing meetings, road shows, presentations, drafting sessions, and calls and a reasonable number of other due diligence sessions with prospective lenders, underwriters, initial purchasers or other investors and sessions with ratings agencies, in each case, in connection with the Debt Financing or ~~the Alternate Financing, including (to the extent reasonably requested~~ any Permanent Financing and ~~reasonably required): (i) participating in a customary~~ with reasonable advance notice and ~~reasonable number of meetings, presentations, due diligence sessions, drafting sessions, road shows and sessions with rating agencies~~during normal business hours; (ii) ~~assisting~~ (A) providing all information regarding Seller, the Divesting Entities and the Business required by bank regulatory authorities under applicable “know your customer”, anti-money laundering rules and regulations and the USA PATRIOT Act of 2001, in each case, at least three (3) Business Days prior to the Closing Date if requested by Purchaser in writing at least ten (10) Business Days prior to the Closing Date, (B) providing the Required Financial Information in accordance with Section 6.20 and, to the extent readily available and reasonably requested by Purchaser or the Financing Sources, any other financial information that is required to consummate the Debt Financing or any Permanent Financing, and (C) providing such other pertinent, customary and readily available information with respect to Seller and the Divesting Entities as is reasonably requested by Purchaser or the Financing Sources in connection with the due diligence of the Financing Sources or the preparation of ~~materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered or otherwise) and similar documents~~ definitive documentation for the Debt Financing or any Permanent Financing~~, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter~~; (iii) ~~as promptly as reasonably practical~~providing reasonable and customary assistance, including providing reasonable information and materials with respect to Seller and the Divesting Entities to Purchaser and the Financing Sources to be used in ~~no event later than March 31~~the preparation of customary lender and investor presentations, ~~2013~~rating agency presentations, ~~furnishing Buyer with (x) audited balance sheets~~ bank information memoranda and similar customary marketing material, confidential offering memoranda, prospectuses and prospectus supplements and other similar offering documents for the ~~Business as at December 31~~Debt Financing or any Permanent Financing, ~~2011~~ including customary authorization letters authorizing the distribution of information to prospective lenders or investors; provided that any such authorization letters shall contain customary language which shall exculpate Seller and ~~2012, and (y) audited statements of income and cash flows~~ the Divesting Entities with respect to any liability related to or responsibility for the ~~Business for~~ contents of such information or related offering and marketing materials by the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”)recipients thereof; (iv) ~~in addition to the information required pursuant to clause (iii)~~obtaining customary accounting consents, ~~above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with financial~~ comfort letters and other ~~information regarding the Business and the Assets as may be~~ similar customary items reasonably requested by ~~Buyer (including in connection with Buyer’s preparation~~ Purchaser, including, if requested, the consent of ~~pro forma financial statements), including unaudited interim financial statements, financial data, projections,~~ the independent auditors for the Business to the inclusion of their audit reports ~~and other information~~ with respect to the applicable audited annual financial statements of the ~~type required by Regulation S-X and Regulation S-K~~ Business in any registration statement of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities contemplated by the Financing, or as otherwise reasonably required in connection Purchaser filed with the ~~Financing~~SEC, ~~or as otherwise necessary in order~~ if any, relating to ~~assist in receiving~~ any Permanent Financing and causing such independent accountants to provide customary ~~“comfort”~~ comfort letters (including “negative assurance” comfort, if appropriate) in connection with any offering to the applicable underwriters, initial purchasers or placement agents; (v) providing Purchaser with reasonable assistance in connection with Purchaser’s preparation of pro forma financial statements and any related management’s discussion and analysis (“MD&A”) (including any MD&A for the Required Financial Information and pro forma financial statements), in each case to the extent required for any Debt Financing or Permanent Financing that comply with the applicable rules and regulations of the SEC, including (if required for such Debt Financing or Permanent Financing) the requirements of Regulation S-X under the Securities Act (“Regulation S-X”) and Regulation S-K thereunder; and (vi) providing Purchaser with reasonable assistance in connection with Purchaser’s preparation of any audited financial statements of the Business for the years ended December 31, 2025 and 2024 (and, if applicable, December 31, 2026) that are required to be prepared in accordance with GAAP (as defined below) for inclusion in Purchaser’s SEC filings (including any required Current Report on Form 8-K), and with Purchaser’s preparation of pro forma financial statements that comply with the rules and regulations of the SEC, including the requirements of Regulation S-X; provided that Seller shall not be required to prepare new financial statements or analyses not otherwise required by Section 6.20. (b) Nothing in this Agreement (including this Section 6.19(b)) will require the Seller, any Divesting Entity, any Representative and/or any Affiliate of any of the foregoing (collectively, the “Selling Entities”) to provide any such cooperation or action to the extent that it would: (i) create an obligation to provide (A) any Excluded Information, (B) financial statements not contemplated in Section 6.20 (and the Selling Entities’ obligation to deliver financial statements (including the timing thereof) shall be governed solely by Section 6.20) including, any information other than information and data derived from ~~independent accountants~~ the Selling Entities’ historical books and records reasonably available to the Selling Entities’ and without undue burden on the Selling Entities and no Selling Entities shall be required to certify or attest to any such pro forma financial statements or other forecasted information, and/or (C) any other information, except for the Required Information, that (I) is not produced in the ordinary course of business or (II) cannot be produced or provided without unreasonable cost or expense prior to the Closing; (ii) require the Selling Entities to pay (or agree to pay) any commitment or other similar fee or make any other payment (other than for reasonable out of pocket costs or expenses that are reimbursed by ▇▇▇▇▇▇▇▇▇ as provided below in Section 6.19(f)), provide any indemnities or incur any liability or other obligation under the Debt Financing (or any Alternative Debt Financing) or any Permanent Financing prior to the Closing; (iii) require the Selling Entities to pass resolutions or consents to approve, or authorize the execution of, the Debt Financing or any Permanent Financing or any definitive documentation related thereto (or any Alternative Debt Financing) prior to the Closing Date; (iv) require the Selling Entities to enter into any contract or agreement with respect to the Debt Financing (or any Alternative Debt Financing) or any Permanent Financing (other than customary authorization letters reasonably acceptable to Seller required in connection with the ~~offering(s) of debt or equity securities contemplated by the~~ Debt Financing (~~all such information in clause (iii~~or any Alternative Debt Financing) ~~and this clause (iv), including the Carve-Out Financials, the “Required Information”~~and/or Permanent Financing); (v) ~~providing information relating to~~ impose any personal liability on the ~~Business that is reasonably available to it to assist in the preparation of any credit agreements~~officers, ~~indentures~~directors, ~~purchase agreements~~managers, ~~currency or interest hedging arrangements~~employees, ~~other definitive financing documents~~advisors, ~~officer’s certificates~~accountants, ~~customary closing documents~~consultants, auditors, agents or other ~~certificates or documents with respect to~~ Representatives of the ~~Financing contemplated by the Financing as may be reasonably requested by Buyer~~Selling Entities; (vi) ~~furnishing Buyer and their Financing sources as promptly as practicable all financial information required~~ cause any representation or warranty in this Agreement to be ~~delivered pursuant to~~ breached by the ~~Financing Letter and monthly financial statements for~~ Selling Entities or require any waiver or amendment of the ~~Business (to the extent prepared in the ordinary course~~ terms of ~~business)~~this Agreement; (vii) ~~assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which~~ conflict with the ~~Assets~~ organizational documents of the Selling Entities or ~~the Business are bound; and~~any Law; (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Financing, as reasonably requested by Buyer; provided that (A) ~~nothing herein shall~~ result in the contravention of, or that could result in a violation or breach of, or a default (with or without notice, lapse of time, or both) under, any material contract to which a Selling Entity is party or by which it is bound, (B) cause any representation or warranty in this Agreement to be breached (or to not be true and current) or (C) cause any conditions to Closing set forth in Article VIII to fail to be satisfied by the End Date or otherwise result in a breach of this Agreement; (ix) provide access to or disclose information that the Selling Entities reasonably determine would jeopardize any attorney-client or similar privilege of the Selling Entities; or (x) require ~~such cooperation~~ the Selling Entities to ~~the extent it would~~ provide any legal opinion, reliance letter, solvency or other similar certificate of its chief financial officer or similar Representative. (c) Nothing in this Section 6.19 will require ~~Seller~~ any Representative of any Selling Entity or any of its Affiliates to ~~waive~~ deliver any document, or ~~amend~~ take any ~~terms~~ action that would reasonably be expected to result in any actual or potential personal liability to any Representative of ~~this Agreement~~any Selling Entity. (d) Subject to Section 6.3(a), ~~incur~~ ▇▇▇▇▇▇ agrees that: (i) Purchaser and its Affiliates may, subject to the Confidentiality Agreements, share any ~~Liabilities~~confidential information with respect to Seller, ~~pay~~ its Affiliates, the Divesting Entities and the Business with any ~~fees~~Financing Sources, ~~reimburse~~ and that Purchaser and their respective Affiliates and such Financing Sources may share such information with potential Financing Sources in connection with any ~~expenses, in each case,~~ marketing efforts with respect to the ~~Financing~~Debt Financing or any Permanent Financing or any offering documents used in Rule 144A for life offerings of debt securities; provided that the recipients of such information and any other confidential information contemplated to be provided by Seller or any of their respective Affiliates pursuant to this Section 6.19, ~~prior~~ agree to customary confidentiality arrangements, including “click through” confidentiality agreements and confidentiality provisions contained in customary bank books and offering memoranda; and (ii) Purchaser and its Affiliates may disclose information relating to the ~~Closing for which it~~ Business, Seller and the Divesting Entities to the extent reasonably required (in the good faith judgment of Purchaser) to be included in any document or offering document used in a public offering of securities constituting Permanent Financing or to the extent required to comply with Regulation FD under the Securities Exchange Act of 1934, as amended; provided, that Seller has ~~not received prior reimbursement~~ been given an opportunity to review and comment on such information. (e) Purchaser shall indemnify and hold harmless Seller and its Affiliates and their respective directors, officers, employees and other Representatives from and against any and all Losses suffered or incurred by them in connection with the arrangement and completion of any Debt Financing or any replacement or substitution thereof (including any Alternative Debt Financing and/or Permanent Financing) or related transactions by Purchaser in connection with financing the Transactions and any information utilized in connection therewith except to the extent such losses result from (i) any material omission or misstatement in any historical information provided by or on behalf of ~~Buyer~~a Selling Entity, (ii) the gross negligence, fraud, willful misconduct of a Selling Entity or ~~would cause Seller or any~~ Seller’s Willful Breach of its obligations under Section 6.18 or this Section 6.19. This Section 6.19(e) 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 Seller and its Affiliates ~~to breach~~ and their respective heirs, executors, estates and personal representatives who are each third-party beneficiaries of this ~~Agreement~~ Section 6.19(e). (f) Purchaser will reimburse Seller on an as incurred basis for any reasonable and documented out-of-pocket costs or ~~become unable to satisfy a condition to the Closing, (B) nothing herein shall require such cooperation from~~ expenses incurred or otherwise payable by Seller or its Affiliates (including reasonable and documented attorneys’ fees and expenses and accountants’ fees and expenses) in connection with its cooperation or efforts pursuant to ~~the extent it would unreasonably interfere with the ongoing operations of Seller or its Affiliates and~~ this Section 6.19. (Cg) ~~there shall be no action, Liability or obligation of Seller or its Affiliates under any certificate, agreement, arrangement, document or instrument relating to the Financing.~~ Notwithstanding anything to the ~~contrary in this Section 6.10~~contrary, ~~neither Seller nor its Affiliates shall be in breach of~~ the ~~covenant~~ condition set forth in Section 8.2(b), as it applies to Seller’s obligations under this Section ~~6.10 if it~~ 6.19, shall be deemed satisfied unless (i) the Debt Financing has ~~acted in good faith to comply with the cooperation and assistance set forth herein.~~ not been obtained, (b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement of the Financing, any other financing and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement. (cii) Seller ~~will use~~ has Willfully Breached its ~~reasonable best efforts to update Required Information provided to Buyer pursuant to clauses~~ obligations under Section 6.19(a) and (iii) ~~and (iv) of Section 6.10(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 made therein, in the light~~ Willful Breach is a substantial cause of the ~~circumstances under which they were made,~~ Debt Financing not ~~misleading~~being obtained.

Appears in 1 contract

Sources: Asset Purchase Agreement (SITIME Corp)

Financing Cooperation. ~~(a) For purposes of this Section 6.10~~Between the date hereof and the Closing Date, the ~~term “Financing”~~ Company agrees to use commercially reasonable efforts to provide, and shall ~~include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise. Prior~~ cause its Subsidiaries to ~~the Closing, Seller shall~~use commercially reasonable efforts to provide, and shall use its commercially reasonable ~~best~~ efforts to ~~cause each of~~ direct its ~~Affiliates~~ and their respective Representatives ~~to, use reasonable best efforts~~ (including legal and accounting representatives) to provide ~~to Buyer such~~ all cooperation reasonably requested by ~~Buyer and reasonably required~~ Parent (at Parent’s sole expense) in connection with the ~~Financing~~ arrangement of debt or ~~the Alternate Financing~~equity financing by KKR, Parent or any of their respective Affiliates, including in connection with obtaining co-investments from the KKR Co-Investors, entering into and consummating Rollover Agreements and/or any other potential capital raising in connection with the Merger and the other transactions contemplated hereby (the “Financings”). Such cooperation shall include, in each case: (i) (A) furnishing Parent and the arrangers for the Financings (the “Arrangers”) as promptly as practicable with (x) audited consolidated balance sheets of the Company and its Subsidiaries as of the end of the two most recently completed fiscal years ended at least 60 days prior to the Closing Date, statements of income, cash flow and shareholders’ equity of the Company and its Subsidiaries for the two most recently completed fiscal years ended at least 60 days prior to the Closing Date, together with all related notes and schedules thereto (the “Annual Financial Statements”) and (y) unaudited consolidated quarterly balance sheets and related statements of income, cash flow and shareholders’ equity of the Company and its Subsidiaries for any subsequent quarterly interim period ended at least 40 days prior to the Closing Date and for the comparable period of the prior fiscal year, together with all related notes and schedules thereto, which shall have been reviewed by the independent auditors of the Company (the “Interim Financial Statements”) in each case of clauses (x) and (y) prepared in accordance with GAAP (other than segment reporting or disclosure), (B) furnishing Parent and the Arrangers as promptly as practicable with other financial information about the Company and its Subsidiaries reasonably necessary to allow Parent to prepare pro forma financial statements (including for the most recently completed fiscal year ended at least 60 days prior to the Closing Date and any subsequent interim period ended at least 40 days prior to the Closing Date and for the comparable period of the prior fiscal year) prepared in accordance with GAAP; provided that such information shall not include, and Parent shall be solely responsible for, the preparation of pro forma financial information and that the Company and its Affiliates shall not be required to provide any audited, unaudited or other financial statements except for the Annual Financial Statements and the Interim Financial Statements and (C) using commercially reasonable efforts to cause to be furnished (x) to Parent consents of the independent auditors of the Company for use of their unqualified audit reports in any materials relating to the Financings or otherwise required to be filed by Parent with the SEC and (y) to the Arrangers customary comfort letters from the independent auditors of the Company to the extent ~~reasonably requested~~ financial statements or other financial information of the Company and ~~reasonably required):~~ its Subsidiaries audited or reviewed by such auditor are included or incorporated by reference into any prospectus, prospectus supplement, offering memorandum or other disclosure documents prepared by Parent in connection with the Financings, (iii) ~~participating~~ participation in ~~a customary and reasonable number of~~ meetings, ~~presentations,~~ presentations and due diligence sessions, ~~drafting sessions, road shows~~ (iii) providing other information reasonably available to the Company and ~~sessions with rating agencies; (ii)~~ assisting with the preparation of ~~materials for rating agency presentations~~a prospectus, prospectus supplement, offering ~~documents, private placement memoranda, bank information memoranda, prospectuses (registered~~ memorandum or ~~otherwise) and similar~~ other disclosure documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii) as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer with (x) audited balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with financial and other information regarding the Business and the Assets as may be reasonably requested by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities contemplated by the Financing, or as otherwise reasonably required in connection with the ~~Financing~~Financings, including providing a reasonable summary description of the Business for use in any such disclosure documents and related marketing materials and (iv) taking all actions reasonably necessary and appropriate to permit the Arrangers and their counsel to complete customary pre-closing due diligence on the Business. Notwithstanding the foregoing (A) no such cooperation shall be required to the extent that it would (1) require the Company or as its Affiliates to take any action that in the good faith judgment of the Company unreasonably interferes with the ongoing business or operations of the Company and its Affiliates, (2) require the Company or its Affiliates to incur any fee, expense or other liability prior to the Closing Date for which they are not promptly reimbursed or indemnified by Parent, (3) cause any representation or warranty of the Company under this Agreement to be breached, (4) cause any condition to Closing to fail to be satisfied or otherwise ~~necessary~~ cause any breach of this Agreement by the Company, (5) be reasonably expected to cause any director, officer or employee of the Company or its Affiliates to incur any personal liability or (6) cause any breach of any applicable Law and (B) the Company and its Affiliates shall not be required to (x) 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 in ~~order~~ each case would be effective prior to ~~assist~~ the Closing or (y) provide any indemnification in ~~receiving customary “comfort”~~ connection with any information provided by the Company, its Subsidiaries or its and their respective Representatives (including ~~“negative assurance” comfort~~legal and accounting representatives) ~~from independent accountants~~ in connection with the ~~offering(s~~Financings. Parent shall (i) ~~of debt or equity securities contemplated by~~ upon written request from the ~~Financing~~ Company, promptly reimburse the Company and its Affiliates for all reasonable and documented out-of-pocket fees, costs and expenses (~~all such information in clause (iii) and this clause (iv)~~including, including the Carve-Out Financials, the “Required Information”); (v) providing information relating to the Business that is reasonably available to it to assist in the preparation of any credit agreements, indentures, 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 Buyer; (vi) furnishing Buyer and their Financing sources as promptly as practicable all financial information required to be delivered pursuant to the Financing Letter and monthly financial statements for the Business (to the extent ~~prepared in~~ incurred at the ~~ordinary course~~ request or consent of ~~business); (vii~~Parent, reasonable legal fees) ~~assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which~~ incurred by the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Financing, as reasonably requested by Buyer; provided that (A) nothing herein shall require such cooperation to the extent it would require Seller or any of its Affiliates to waive or amend any terms of this Agreement, incur any Liabilities, pay any fees, reimburse any expenses, in each case, with respect to the Financing, prior to the Closing for which it has not received prior reimbursement by or on behalf of Buyer, or would cause Seller or any of its Affiliates to breach this Agreement or become unable to satisfy a condition to the Closing, (B) nothing herein shall require such cooperation from Seller Company or its Affiliates ~~to the extent it would unreasonably interfere~~ in connection with the ~~ongoing operations of Seller~~ cooperation or assistance contemplated by this Section 6.06 and (ii) indemnify and hold harmless the Company and its Affiliates and ~~(C) there shall be no action~~Representatives from and against any and all losses, ~~Liability~~ liabilities, damages, claims, costs or ~~obligation~~ expenses suffered or incurred by them in connection with the performance of ~~Seller or its Affiliates~~ their obligations under ~~any certificate, agreement, arrangement, document or instrument relating to the Financing. Notwithstanding anything to the contrary in~~ this Section ~~6.10, neither Seller nor its Affiliates shall be~~ 6.06 in breach of the covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth herein. (b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement of the ~~Financing,~~ Financing and any ~~other financing and/or the provision of~~ information utilized in connection ~~therewith~~ therewith, except to the ~~fullest~~ extent permitted by applicable Legal Requirement. (c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii) and (iv) of Section 6.10(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 made therein, in the light~~ of the ~~circumstances~~ foregoing arise from the bad faith, gross negligence or willful misconduct of, or material breach of this Agreement by the Company, as applicable. Each of Parent and Merger Sub acknowledges and agrees that obtaining Financing is not a condition to its obligations under ~~which they were made, not misleading~~this Agreement.

Appears in 1 contract

Sources: Merger Agreement (KKR & Co. Inc.)

Financing Cooperation. (a) ~~For purposes~~ From the date of this Agreement through the earlier of the Closing and the valid termination of this Agreement, subject to the limitations set forth in this Section ~~6.10~~6.06, and unless otherwise agreed by Parent, the ~~term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise. Prior~~ Company agrees to ~~the Closing, Seller shall, and shall use reasonable best efforts to cause each of its Affiliates and Representatives to,~~ use reasonable best efforts to provide such assistance (and to ~~Buyer~~ cause its Subsidiaries, controlled Affiliates and its and their respective personnel and advisors to provide such ~~cooperation~~ assistance) as is reasonably requested by ~~Buyer~~ Parent in writing and ~~reasonably required~~ is necessary or customary for debt financings of the type so contemplated in connection with the ~~Financing~~ arrangement of any Debt Financing. (b) Such assistance shall include, but not be limited to, the following (and, with respect to clauses (i) and (vii) below, such assistance shall not be subject to any efforts standards): (i) furnishing Parent as promptly as reasonably practicable (or (x) in the ~~Alternate Financing~~case of any audited financial statements furnished pursuant to clause (A) below, ~~including~~ as promptly as reasonably practicable but in no event more than 75 days after the relevant fiscal year, (y) in the case of any unaudited quarterly financial statements furnished pursuant to clause (A) below, as promptly as reasonably practicable but in no event more than 40 days after the relevant fiscal quarter and (z) in the case of clause (B) below as promptly as reasonably practicable, but in no event, more than 15 Business Days after the relevant quarter) with (A) the Required Information and (B) customary “flash” or “recent development” revenue or other similar interim period information (which may be provided in a reasonable range or estimate and may be provided on a non-GAAP basis) for any fiscal quarter ending after the date hereof and prior to the Closing, in the case of clause (B), that is Compliant under clause (i) of the definition thereof; (ii) furnishing Parent to the extent reasonably requested by Parent such other financial and ~~reasonably required):~~other pertinent information (including interim period financial information) pertaining to the Company, its Subsidiaries, any other consolidated entity or investment and any Fund sponsored, managed or advised by the Company or any of its Subsidiaries; (iiii) preparing for and participating in (through management with appropriate seniority and expertise, and in each case on reasonable advance notice) a ~~customary and~~ reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions, ~~drafting sessions, road shows and~~ sessions with rating ~~agencies~~agencies and other customary syndication activities in connection with the Debt Financing; (iiiv) causing the independent auditors of the Company to assist and cooperate with Parent in connection with the Debt Financing, including by (A) providing consent to offering memoranda that include or incorporate the Company’s consolidated financial information and their reports thereon, and customary comfort letters (including “negative assurance” and change period comfort) with respect to financial information relating to the Company and its Subsidiaries and (B) on reasonable advance notice, attending accounting due diligence sessions in connection with the Debt Financing; (v) assisting ~~with~~ Parent in the preparation of ~~materials for rating agency presentations,~~ any offering documents, private placement memoranda, bank information ~~memoranda, prospectuses (registered or otherwise)~~ memoranda and similar documents and any materials for ~~the Financing~~rating agency presentations, including execution and delivery of customary ~~representation~~ authorization letters related thereto (including customary representations with respect to the absence of material non-public information in the public-side versions of documents and the absence of material misstatements or omissions) and customary chief financial officer and similar certificates and certificates with respect to certain financial information in the offering documents not otherwise covered by “comfort” letters described above, and providing reasonable cooperation with the due diligence efforts of Parent to the extent reasonable and customary; (vi) solely with respect to the Company and its Subsidiaries, facilitating the pledging of, granting a security interest in and obtaining perfection of any Liens on, collateral for the Debt Financing in connection with ~~an audit of~~ the ~~Business and auditors comfort letter~~Closing; (~~iii~~vii) providing as promptly as reasonably ~~practical,~~ practicable (and in any event, no ~~event later~~ less than ~~March 31~~four Business Days prior to the Closing Date) all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, ~~2013, furnishing Buyer with~~ including (xA) ~~audited balance sheets for~~ the ~~Business as at December 31, 2011 and 2012,~~ USA Patriot Act and (yB) ~~audited statements of income~~ a certification regarding beneficial ownership as required by 31 C.F.R. §1010.230, relating to the Company and ~~cash flows for the Business for the three (3) years ended December 31~~its Subsidiaries, ~~2012 and (z) within forty-five (45) days~~ in each case as reasonably requested of the ~~end of~~ Company in writing by Parent at least eight Business Days prior to the ~~relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”)~~Closing Date; (ivviii) ~~in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer~~ executing and ~~the other parties to the Financing Letter with financial~~ delivering definitive documents and other information regarding the Business and the Assets as may be reasonably requested by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities 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 “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt or equity securities contemplated by the Financing (all such information in clause (iii) and this clause (iv), including the Carve-Out Financials, the “Required Information”); (v) providing information closing certificates relating to the Business that is reasonably available to it to assist in the preparation of any credit agreements, indentures, 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 Debt Financing as may be reasonably requested by ~~Buyer;~~P▇▇▇▇▇; and (viix) ~~furnishing Buyer~~ taking all corporate or company actions, subject to the occurrence of the Closing, reasonably requested by Parent that are necessary or customary to permit the consummation of the Debt Financing, including any high yield financing, and to permit the proceeds thereof, to be made available at the Closing Date to consummate the transactions contemplated hereunder. (c) The Company hereby consents to the use of all of its and its Subsidiaries’ logos in connection with the Debt Financing; provided that such logos are used in a manner that is not intended to or reasonably likely to harm or disparage the Company or its Subsidiaries or their reputation or goodwill. (d) Except with respect to the provision of authorization letters and certificates to provide comfort referred to in clauses (b)(iv)(A) and (b)(v) above and except with respect to “know-your-customer” information referred to in clause (b)(vii) above, such assistance shall not require the Company or any of its Affiliates to agree to any contractual obligation relating to the Debt Financing ~~sources as~~ that is not conditioned upon the Closing and that does not terminate without liability to the Company or any of its Affiliates upon the termination of this Agreement. The effectiveness of any definitive documentation for the Debt Financing executed by the Company or any of its Subsidiaries shall be subject to the consummation of the Merger. (e) On the Closing Date or following the termination of this Agreement, Parent shall promptly ~~as practicable~~ reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or any of its Subsidiaries in connection with the assistance contemplated by this ‎Section 6.06; provided, that Parent shall not be required to reimburse the Company for costs and expenses with respect to financial statements, financial information ~~required to be delivered pursuant~~ or other materials prepared prior to the ~~Financing Letter and monthly financial statements for~~ date hereof or, after the ~~Business (to~~ date hereof, that the ~~extent~~ Company would have prepared in the ordinary course of business);. (~~vii~~f) ~~assisting Buyer to obtain waivers~~Parent shall indemnify and hold harmless the Company and its Subsidiaries and their respective personnel and advisors from and against any and all liabilities, ~~consents~~losses, ~~estoppels and approvals from other parties to Contracts~~damages, ~~material Leases and Easements~~claims, costs, expenses, interest, awards, judgments, and ~~Encumbrances to which~~ penalties suffered or incurred in connection with the ~~Assets~~ Debt Financing or any requested assistance or activities provided in connection therewith, and the ~~Business are bound~~foregoing obligations shall survive termination of this Agreement; ~~and~~provided, that the foregoing shall not apply (i) in the Company’s or its Subsidiaries, personnel or advisors’ willful misconduct, bad faith or gross negligence or (ii) in connection with any information included in filings made by the Company with the SEC under Form 10-K, Form 10-Q or Form 8-K. (~~viii~~g) ~~cooperating with Buyer~~ Notwithstanding the foregoing, nothing in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Financing, as reasonably requested by Buyer; provided that (A) nothing herein this Section 6.06 shall require ~~such cooperation to~~ the ~~extent it would require Seller~~ Company or any of its ~~Affiliates to waive or amend~~ Subsidiaries to: (i) provide any terms of this Agreement, incur any Liabilities, pay any fees, reimburse any expenses, in each case, with respect to the Financing, prior to the Closing for which it has not received prior reimbursement by or on behalf of Buyer, or would cause Seller or any of its Affiliates to breach this Agreement or become unable to satisfy a condition to the Closing, (B) nothing herein shall require such ~~cooperation from Seller or its Affiliates to the extent it~~ assistance that would unreasonably interfere with the ~~ongoing~~ business operations of ~~Seller~~ the Company or its ~~Affiliates and~~ Subsidiaries; (Cii) ~~there shall be no action, Liability or obligation~~ take any actions that would result in a violation of ~~Seller~~ the organizational documents of the Company or its ~~Affiliates under~~ Subsidiaries, any ~~certificate~~Applicable Law (in any material respect), ~~agreement~~any Material Contract, ~~arrangement~~or any confidentiality arrangement or the loss of any legal or other applicable privilege; (iii) pay any commitment fee or other fee, ~~document~~ make any payment to obtain consent, agree to provide any indemnity in connection with the Debt Financing or ~~instrument relating~~ incur any liability with respect to or cause or permit any Lien to be placed on any of their respective assets that is effective prior to the ~~Financing. Notwithstanding anything~~ Closing Date; (iv) (x) pass resolutions or consents (except those which are subject to the ~~contrary in this Section 6.10, neither Seller nor its Affiliates shall be in breach~~ occurrence of the ~~covenant set forth~~ Closing passed by directors or officers continuing in ~~this Section 6.10 if it has acted in good faith to comply with~~ their positions following the ~~cooperation and assistance set forth herein.~~ Closing) or (by) ~~Buyer shall indemnify the Seller Indemnitees from, against and in respect of~~ execute any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement of the Financing, any other financing and/or document (excluding the provision of ~~information utilized~~ authorization letters and certificates to provide comfort referred to in ~~connection therewith to the fullest extent permitted by applicable Legal Requirement. (c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to~~ clauses (~~iii~~b)(iv)(A) and (ivb)(v) ~~of Section 6.10(a~~and “know-your-customer” information referred to in clause (b)(vii) ~~as may be necessary~~ above, and such documents or contracts that will become effective at the ~~Required Information does not contain any untrue statement of material fact~~ Closing) or ~~omit~~ contract prior to ~~state any material fact necessary in order to make~~ the ~~statements made therein, in the light~~ occurrence of the ~~circumstances under which they were made~~Closing in connection with the Debt Financing; and (v) take any action that could reasonably be expected to cause any director, ~~not misleading~~officer or employee or stockholder of any such Person to incur personal liability.

Appears in 1 contract

Sources: Merger Agreement (Diamond Hill Investment Group Inc)

Financing Cooperation. (a) ~~For purposes of this Section 6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise.~~ Prior to the ~~Closing~~Effective Time, ~~Seller shall~~the Company shall use its reasonable best efforts, and shall cause the Company Subsidiaries to use their reasonable best efforts, and shall use its reasonable best efforts, to cause its and their respective Representatives to, provide all customary cooperation and all customary financial information, in each case that is reasonably requested by Parent in connection with any financing, including the Debt Financing, obtained or to be obtained by Parent for the purpose of financing the Transactions or any transaction undertaken in connection therewith (it being understood that the receipt of any such financing is not a condition to the Merger), including by using reasonable best efforts to: (i) furnish, or cause to be furnished, to Parent (x) audited consolidated balance sheets and related consolidated statements of operations and comprehensive income (loss), consolidated statements of shareholders’ equity and consolidated statements of cash flows for the Company for each of the three (3) most recently completed fiscal years of the Company ended at least sixty (60) days prior to the Closing Date prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year (which Parent hereby acknowledges receiving for the three (3) fiscal years ended March 27, 2021, April 2, 2022 and April 1, 2023) and (y) unaudited consolidated balance sheets and related consolidated statements of operations and comprehensive income (loss), consolidated statements of shareholders’ equity and consolidated statements of cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for each subsequent fiscal quarter ended on a date that is at least forty (40) days before the Closing Date; (ii) cause the Company’s and the Company Subsidiaries’ independent accountants, as reasonably requested by Parent, to (a) consent to the use of their audit reports on the financial statements of the Company and the Company Subsidiaries in any materials relating to, or any filings made with the SEC related to, such financing, (b) provide, consistent with customary practice, “comfort letters,” including customary “negative assurances” (including drafts thereof which such accountants are prepared to issue at the time of pricing and at closing of any offering or placement of the Debt Financing) necessary and reasonably requested by Parent in connection with any debt capital markets transaction comprising a part of such financing, and (c) participate in reasonable and customary due diligence sessions, which sessions shall be telephonic or held by videoconference and held at reasonable and mutually agreeable times; (iii) assist Parent in (including by providing information relating to the Company and the Company Subsidiaries reasonably required and requested by Parent in connection with) its preparation of rating agency presentations, road show materials, bank information memoranda, projections, prospectuses, bank syndication materials, credit agreements, offering memoranda, private placement memoranda, definitive financing documents (as well as customary certificates and “backup” support) and similar or related documents to be prepared by Parent in connection with such financings, and which may incorporate by reference periodic and current reports filed by the Company with the SEC, including any historical financial information of the Company and the Company Subsidiaries required for the preparation by Parent of customary pro forma financial information and pro forma financial statements to the extent required by Regulation S-X under the Securities Act or any other accounting rules and regulations of the SEC, and/or in connection with such financing (it being agreed that the Company need only assist in the preparation thereof but shall not be required to (x) prepare independently any pro forma financial statements or (y) provide any information or assistance relating to (A) the proposed aggregate amount of debt financing, together with assumed interest rates, dividends (if any) and fees and expenses relating to the incurrence of such debt, (B) any post-Closing or pro forma cost savings, synergies, capitalization or ownership desired to be incorporated into any information used in connection with such financing or (C) any financial information related to Parent or any Parent Subsidiaries); (iv) cooperate with customary marketing efforts of Parent for such financing, including using reasonable best efforts to cause ~~each of~~ its ~~Affiliates~~ management team, with appropriate seniority and ~~Representatives to~~expertise, ~~use reasonable best efforts~~ to ~~provide~~ assist in preparation for and to Buyer such cooperation reasonably requested by Buyer and reasonably required in connection with the Financing or the Alternate Financing, including (to the extent reasonably requested and reasonably required): (i) participating participate in a ~~customary and~~ reasonable number of meetings, presentations, road shows, due diligence sessions (including accounting due diligence sessions), drafting sessions, and sessions with rating agencies, in each case, upon reasonable notice and at mutually agreeable dates and times, which sessions meetings, presentations, road shows and sessions with rating agencies; (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered shall be telephonic or otherwise) and similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii) as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer with (x) audited balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with financial and other information regarding the Business and the Assets as may be reasonably requested held by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities 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 “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt or equity securities contemplated by the Financing (all such information in clause (iii) and this clause (iv), including the Carve-Out Financials, the “Required Information”)video conference; (v) ~~providing information relating~~ deliver to Parent, no later than four (4) Business Days prior to the ~~Business that is reasonably available~~ Closing Date, any materials and documentation about the Company and the Company Subsidiaries required under applicable “know your customer” and anti-money laundering Laws (including the Uniting and Strengthening America by Providing Appropriate Tools Required to ~~it to assist in the preparation~~ Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of ~~any credit agreements~~2001), indentures, 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~~ extent requested by ~~Buyer~~Parent no less than nine (9) Business Days prior to the Closing Date; (vi) ~~furnishing Buyer and their Financing sources~~ inform Parent promptly in writing if the Company (A) concludes that any previously issued financial statement of the Company or any of Subsidiaries included in any materials with respect to such financing should no longer be relied upon as ~~promptly as practicable all financial information required to be delivered pursuant to~~ per Item 4.02 of Form 8-K under the ~~Financing Letter and monthly~~ Exchange Act or (B) shall have determined a restatement of any of the Company’s or the Company Subsidiaries’ financial statements ~~for the Business (to the extent prepared in the ordinary course of business)~~is required or reasonably likely; (vii) ~~assisting Buyer~~ cooperate with respect to ~~obtain waivers~~the provision of guarantees required by such financing, ~~consents~~including by executing and delivering definitive documents related thereto, ~~estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which~~ it being understood that the ~~Assets or~~ effectiveness of any such guarantees shall be conditioned upon the ~~Business are bound~~occurrence of the Closing; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating provide customary authorization letters to the ~~Financing~~Financing Parties authorizing the distribution of information to prospective lenders or investors and containing a representation that the public side versions of such documents, ~~as reasonably requested by Buyer;~~ if any, do not include material non-public information about the Company or the Company Subsidiaries (only to the extent such authorization letters contain customary disclaimers for the Company, its affiliates and their respective Representatives with respect to responsibility for the use or misuse of the contents thereof), provided that the Company is afforded adequate time to review such authorization letters and related materials; provided, however, that (Aa) ~~nothing herein shall require~~ no such cooperation shall be required under this Section 6.13 or Section 6.14(b) to the extent it ~~would~~ would (i) unreasonably disrupt the conduct of the Company’s business, (ii) require ~~Seller~~ the Company or ~~any of its Affiliates~~ the Company Subsidiaries to ~~waive or amend any terms of this Agreement,~~ incur ~~any Liabilities, pay~~ any fees, ~~reimburse any expenses, in each case, with respect to the Financing,~~ expenses or other liability prior to the ~~Closing~~ Effective Time for which it ~~has~~ is not ~~received prior reimbursement by~~ promptly reimbursed or on behalf of Buyer, or would cause Seller or any of its Affiliates to breach this Agreement or become unable to satisfy a condition to the Closing, (B) nothing herein shall require such cooperation from Seller or its Affiliates to the extent it would unreasonably interfere with the ongoing operations of Seller or its Affiliates and (C) there shall be no action, Liability or obligation of Seller or its Affiliates under any certificate, agreement, arrangement, document or instrument relating to the Financing. Notwithstanding anything to the contrary in this Section 6.10, neither Seller nor its Affiliates shall be in breach of the covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth herein. (b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement of the Financing, any other financing and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement. (c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii) and (iv) of Section 6.10(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 made therein, in the light of the circumstances under which they were made, not misleading.simultaneously indemnified,

Appears in 1 contract

Sources: Merger Agreement

Financing Cooperation. (a) ~~For purposes of this Section 6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise.~~ Prior to the ~~Closing~~Effective Time, ~~Seller shall~~the Company and its Subsidiaries shall use reasonable best efforts to, and shall use reasonable best efforts to cause ~~each of its Affiliates and~~ their respective Representatives to, ~~use reasonable best efforts to provide to Buyer such cooperation reasonably requested by Buyer and reasonably required~~ cooperate with Parent as necessary in connection with the Financing or the Alternate Financing, including (to the extent reasonably requested and reasonably required): (i) participating in a customary and reasonable number of meetings, presentations, due diligence sessions, drafting sessions, road shows and sessions with rating agencies; (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered or otherwise) and similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii) as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer with (x) audited balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with financial and other information regarding the Business and the Assets as may be reasonably requested by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities 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 “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt or equity securities contemplated by the Financing (all such information in clause (iii) and this clause (iv), including the Carve-Out Financials, the “Required Information”); (v) providing information relating to the Business that is reasonably available to it to assist in the preparation of any credit agreements, indentures, 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 ~~Buyer~~Parent, including using reasonable best efforts to: (i) assist with the preparation of and providing customary information and materials to be used in the preparation of customary confidential information memoranda, offering memoranda, registration statements, prospectuses, prospectus supplements and similar offering documents, customary rating agency presentations and customary lender and investor presentations, in each case necessary and customary for financings of the type contemplated by the Financing (the “Syndication and Offering Materials”) (provided that in connection with the foregoing, no such Syndication and Offering Materials shall be issued by the Company or any of its Subsidiaries); (viii) ~~furnishing Buyer~~ provide (A) audited consolidated balance sheets and ~~their Financing sources as promptly as practicable all~~ related audited statements of income, changes in stockholders’ equity and cash flows of the Company and its Subsidiaries for each of the three most recently completed fiscal years ending at least sixty (60) days prior to the Closing Date, prepared in accordance with GAAP; and (B) unaudited condensed consolidated balance sheets and related unaudited condensed consolidated statements of income, changes in stockholders’ equity and cash flows for each subsequent fiscal quarter of the Company and its consolidated Subsidiaries ending after the date of the most recently ended fiscal year for which financial ~~information required to be~~ statements have been delivered pursuant to the ~~Financing Letter~~ foregoing clause (A) and ~~monthly~~ at least forty (40) days prior to the Closing Date (but, excluding the fourth quarter of any fiscal year), prepared in accordance with GAAP, together with unaudited financial statements for the corresponding period of the prior year (and in the case of clauses (A) and (B) meeting the requirements of Rule 3-05 of Regulation S-X under the Securities Act, (it being understood and agreed that the timely filing of the financial statements in clauses (A) and (B) of this Section 6.12(a)(ii) on Form 10-K or Form 10-Q, as applicable, shall satisfy the requirements hereunder); (iii) provide promptly, and in any event at least three (3) Business (Days prior to the Closing Date to the extent reasonably requested by Parent no later than ten (10) Business Days prior to the Closing Date, all documentation and other information about the Company and its Subsidiaries required by regulatory authorities with respect to the Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, that is required under paragraph 9 of Annex C of the Commitment Letter; (iv) cause senior management of the Company and its Subsidiaries to cooperate reasonably with customary due diligence efforts of the Financing Sources, including being available to participate in a reasonable and customary number of due diligence sessions with the underwriters and the lead arrangers with respect to the Financing; and (v) consent to the use of the Company’s and the Company’s Subsidiaries’ logos in connection with the Financing; provided, that such logos are used solely in a manner that is not intended to or is reasonably likely to harm or disparage the Company or any of its Subsidiaries. (b) Notwithstanding anything in this Section 6.12 to the contrary, in fulfilling its obligations pursuant to this Section 6.12, neither the Company nor any of its Subsidiaries shall be required to take any action that would: (i) unreasonably interfere with the ongoing business or operations of the Company or its Subsidiaries; (ii) require disclosure of information in the Syndication and Offering Materials if, in the reasonable judgment of the Company, such disclosure would cause significant competitive harm to the Company or its Subsidiaries if the transactions contemplated by this Agreement are not consummated; (iii) require the Company or its Subsidiaries to prepare pro forma financial statements or any financial statements, projections, other forward-looking information or other information that are not available to it and prepared in the ordinary course of ~~business~~its financial reporting practice; (iv) subject any director, officer, manager employee, accountant, legal counsel or other Representative of the Company or its Subsidiaries to any personal Liability; (v) in the reasonable judgment of the Company after consultation with its outside legal counsel, (x) result in the contravention of, or would reasonably be expected to result in a violation or breach of, or a default under, the Company Organizational Documents or Subsidiary Organizational Documents, any Applicable Laws or under any material Contract or (y) require the Company to provide access to or disclose information that the Company reasonably 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 (v)(y), 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); (vi) take or permit the taking of any action that would cause any covenant, representation or warranty in this Agreement to be breached by the Company or any of its Subsidiaries; (vii) ~~assisting Buyer~~ require the Company to ~~obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which~~ prepare separate financial statements for any Subsidiary of the ~~Assets or the Business are bound; and~~Company; (viii) ~~cooperating~~ require the Company or any of its Subsidiaries to execute, deliver or perform any agreement, instrument or document in connection with ~~Buyer~~ the Financing; (ix) require the Company or any of its Subsidiaries to adopt any resolution or take any similar actions approving the Financing; (x) require the delivery of opinions of internal or external counsel; (xi) require the Company, its Subsidiaries or their Representatives to pay any commitment or other fee, bear any expense, provide any indemnity or security, incur any other Liability or assume any obligation in ~~its efforts~~ connection with the Financing that is not subject to ~~obtain accountants~~indemnification or reimbursement under Section 6.12(c); or (xii) cause any condition to the Closing set forth in this Agreement to not be satisfied. (c) Parent shall, promptly upon the request of the Company, reimburse the Company for all reasonable out-of-pocket costs (including reasonable attorneys’ ~~comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental~~ fees and other ~~inspections, title insurance and other documentation and items relating to~~ Representatives) incurred by the ~~Financing, as reasonably requested by Buyer; provided that (A) nothing herein shall require such cooperation to the extent it would require Seller~~ Company or any of its Affiliates ~~to waive or amend~~ in connection with the cooperation contemplated by this Section 6.12. Parent shall indemnify and hold harmless the Company and its Affiliates and their respective directors, officers, managers, employees and Representatives from and against any ~~terms of this Agreement~~and all liabilities, ~~incur any Liabilities~~losses, ~~pay any fees~~damages, ~~reimburse any~~ claims, costs, expenses, awards, judgments and penalties suffered or incurred by them in ~~each case~~connection with the Financing and any cooperation or other actions taken pursuant to this Section 6.12 except in the event such liabilities, ~~with respect to~~ losses, damages, claims, costs, expenses, awards, judgments and penalties arise out of or result from the ~~Financing~~fraud, ~~prior to~~ gross negligence, willful misconduct or bad faith by the Closing for which it has not received prior reimbursement by or on behalf of Buyer, or would cause Seller or any of its Affiliates to breach this Agreement or become unable to satisfy a condition to the Closing, (B) nothing herein shall require such cooperation from Seller Company or its Affiliates ~~to the extent it would unreasonably interfere with the ongoing operations of Seller~~ or ~~its Affiliates~~ such directors, officers, managers, employees and (C) there shall be no action, Liability or obligation of Seller or its Affiliates under any certificate, agreement, arrangement, document or instrument relating to the Financing. Notwithstanding anything to the contrary in this Section 6.10, neither Seller nor its Affiliates shall be in breach of the covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth hereinRepresentatives. (b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement of the Financing, any other financing and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement. (c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii) and (iv) of Section 6.10(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 made therein, in the light of the circumstances under which they were made, not misleading.

Appears in 1 contract

Sources: Merger Agreement (General Mills Inc)

Appears in 1 contract

Sources: Transaction Agreement (Emerson Electric Co)

Financing Cooperation. ~~(a) For purposes of this Section 6.10, the term “Financing”~~ The Company shall ~~include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise. Prior~~ provide to ~~the Closing, Seller shall~~Parent, and shall cause the respective officers and employees of the Company, and use its commercially reasonable ~~best~~ efforts to cause ~~each~~ the Representatives of ~~its Affiliates and Representatives to, use reasonable best efforts~~ the Company to provide to ~~Buyer such~~ Parent, all cooperation reasonably requested by ~~Buyer and~~ Parent that is necessary or reasonably required in connection with the ~~Financing or the Alternate~~ Financing, the Debt Tender Offer, the Company Note Consent Solicitation, any defeasance or satisfaction and discharge of any Company Notes in accordance with their terms, or any offering of non-convertible debt securities by Parent or its Subsidiaries pursuant to Rule 144A promulgated under the Securities Act (a “High Yield Offering”), including the following: (a) causing the Company’s chief executive officer and chief financial officer to ~~the extent reasonably requested and reasonably required): (i) participating~~ participate in a ~~customary and~~ reasonable number of meetings, presentations, ~~due diligence sessions~~road shows, ~~drafting sessions, road shows and~~ sessions with rating ~~agencies;~~ agencies or other syndication activities, and to participate in reasonable and customary diligence; (iib) assisting with the preparation of appropriate and customary materials for rating agency presentations, offering documents, ~~private placement memoranda,~~ bank information ~~memoranda, prospectuses (registered or otherwise)~~ memoranda and similar documents; (c) assisting with the preparation of any pledge and security documents, any supplemental indentures, any loan agreement, currency or interest hedging agreement, and other definitive financing documents ~~for the Financing~~on terms satisfactory to Parent, ~~including execution and delivery of customary representation letters in connection with an audit~~ provided that no obligation of the ~~Business~~ Company under any such document or agreement shall be effective until the Effective Time; (d) furnishing Parent and ~~auditors comfort letter; (iii)~~ its financing sources as promptly as reasonably ~~practical, and in no event later than March 31, 2013, furnishing Buyer~~ practicable upon request by Parent with (xi) ~~audited~~ unaudited consolidated balance sheets and related statements of income and cash flows of the Company for each fiscal quarter ended after the ~~Business as~~ close of its most recent fiscal year and at ~~December 31~~least forty (40) days prior to the Closing Date, ~~2011 and~~ (ii) if the Merger shall not have been consummated on or prior to February 14, 2012, audited consolidated balance sheets and ~~(y) audited~~ related statements of income and cash flows for the ~~Business~~ Company for the ~~three (3) years~~ fiscal year ended December 31, 2011 by no later than February 15, 2012 and (ziii) ~~within forty-five (45) days of the end of the relevant fiscal quarter~~all financial statements, ~~unaudited interim~~ pro forma financial ~~statements for each fiscal quarter ending after January 1~~information, ~~2013 (collectively~~financial data, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with financial and other information regarding the ~~Business~~ Company and the Assets as may be reasonably requested by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information its Subsidiaries of the type that would be required by Regulation S-X and Regulation S-K of promulgated under the Securities Act ~~of 1933~~ for a registered public ~~offering~~offering of non-convertible debt securities of the Company (including for use in Parent’s preparation of pro forma financial statements), ~~and~~ to the extent such information is of the type and form customarily included in ~~private placements under Rule 144A, to consummate the offering(s) of debt or equity securities contemplated by the Financing~~an offering memorandum for a High Yield Offering, or ~~as otherwise reasonably required in connection with the Financing, or as~~ otherwise necessary ~~in order~~ to ~~assist in receiving~~ receive from the Company’s independent accountants customary “comfort” (including “negative assurance” comfort) ~~from~~ with respect to the 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 Statement on Auditing Standards No. 100; (e) furnishing on a confidential basis to Parent and its financing sources, as promptly as reasonably practicable, with such financial and other pertinent information regarding the Company as may be reasonably requested by Parent, including all financial statements and other financial data required by the Commitment Letter (all such information referred to in clauses (d) and (e), together with draft customary “comfort letters” (including as to customary negative assurance comfort and change period) from Company’s independent accountants with respect to any of the information referred to in clauses (d) and (e) above included in any offering documents in connection with the ~~offering(s)~~ High Yield Offering, which accountants have confirmed that they are prepared to issue upon pricing of any applicable debt ~~or equity securities contemplated by the Financing (all such information in clause (iii) and this clause (iv), including the Carve-Out Financials~~securities, the “Required Information”); ; (vf) requesting the Company’s independent accountants to prepare and deliver “comfort letters,” dated the date of each final offering document used in connection with any High Yield Offering (with appropriate bring-down comfort letters delivered on the closing date of any High Yield Offering), in compliance with professional standards and otherwise on terms reasonably acceptable to Parent, as the case may be; (g) requesting that the administrative agent and collateral agent under the Company’s existing credit facilities provide debt payoff letters and related ancillary agreements; (h) providing information relating to the Business that is reasonably available to it to assist in the preparation of any credit agreements, indentures, purchase agreements, currency or interest hedging arrangements, other definitive financing documents, requested officer’s ~~certificates~~certificates and representation letters; (i) using commercially reasonable efforts to cause to be prepared and rendered requested solvency opinions and opinions of counsel, in each of the foregoing cases as may be necessary and customary ~~closing documents, or other certificates or documents~~ in connection with ~~respect~~ a financing substantially similar to the Financing ~~contemplated by the Financing as may be reasonably requested by Buyer;~~ or a High Yield Offering; and (vij) ~~furnishing Buyer and their Financing sources as promptly as practicable all financial information required to be delivered pursuant~~ furnishing, for no fee, to the ~~Financing Letter and monthly financial statements for the Business (~~parties to the ~~extent prepared~~ Commitment Letter, an electronic version of the Company’s trademarks, service marks and corporate logo solely for use in the ordinary course of business); (vii) assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items marketing materials relating to the Financing~~, as reasonably requested by Buyer~~; provided ~~that (A) nothing herein shall require such cooperation~~ that, notwithstanding anything in this Agreement to the ~~extent it would require Seller or~~ contrary, until the Effective Time occurs, neither the Company nor any of its ~~Affiliates~~ Subsidiaries shall (1) be required to ~~waive or amend any terms of this Agreement, incur any Liabilities,~~ pay any commitment or other fee, including consent fees, ~~reimburse~~ in connection with the Financing, the Debt Tender Offer, the Company Note Consent Solicitation, or a High Yield Offering that is not paid in advance by Parent on behalf of the Company, (2) have any ~~expenses, in each case, with respect~~ liability or obligation under any loan agreement or any related document or any other agreement or document related to the Financing, ~~prior to the Closing for which it has not received prior reimbursement by~~ or ~~on behalf of Buyer~~a High Yield Offering, or ~~would cause Seller or~~ (3) be required to incur any of its Affiliates to breach this Agreement or become unable to satisfy a condition to the Closing, (B) nothing herein shall require such cooperation from Seller or its Affiliates to the extent it would unreasonably interfere other liability in connection with the ~~ongoing operations of Seller~~ Financing or ~~its Affiliates~~ a High Yield Offering. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses paid to third parties (Cincluding advisor’s fees and expenses) ~~there shall be no action, Liability or obligation of Seller or its Affiliates under any certificate, agreement, arrangement, document or instrument relating to~~ incurred by the ~~Financing. Notwithstanding anything to the contrary~~ Company in ~~this Section 6.10, neither Seller nor its Affiliates shall be in breach of the covenant set forth in this Section 6.10 if it has acted in good faith to comply~~ connection with the cooperation ~~and assistance set forth herein. (b) Buyer~~ provided in connection with the Financing, the Debt Tender Offer, the Company Note Consent Solicitation, or a High Yield Offering. Parent shall indemnify and hold harmless the ~~Seller Indemnitees from~~Company and its Subsidiaries and their respective officers, employees, and Representatives from and against any and all liabilities or losses suffered or incurred by them in ~~respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from~~ connection with the arrangement of the Financing, the Debt Tender Offer, the Company Note Consent Solicitation or a High Yield Offering and any ~~other financing and/or the provision of~~ information utilized in connection therewith to (other than arising from information provided by the ~~fullest extent permitted by applicable Legal Requirement. (c) Seller will use~~ Company, any of its ~~reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii) and (iv)~~ Subsidiaries, or any of Section 6.10(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 made thereintheir respective Representatives), except in the ~~light~~ event such liabilities or losses arose out of or resulted from the willful misconduct, fraud, intentional misrepresentation or gross negligence of the ~~circumstances under which they were made~~Company, ~~not misleading~~any of its Subsidiaries, or any of their respective Representatives.

Appears in 1 contract

Sources: Merger Agreement (PAETEC Holding Corp.)

Financing Cooperation. (a) ~~For purposes of this Section 6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise.~~ Prior to the ~~Closing~~Pubco Merger Effective Time (or the earlier termination of this Agreement), ~~Seller~~ the Company shall, and shall cause its Subsidiaries to, and shall use commercially reasonable efforts to cause its and their Representatives to, provide customary cooperation that is reasonably requested by Parent in connection with any Financing, including: (i) using reasonable best efforts to furnish to Parent (A) audited consolidated balance sheets and related consolidated statements of operations, equity and cash flows for the Company for each of the three (3) most recently completed fiscal years of the Company ended at least sixty (60) days prior to the Closing Date prepared in accordance with GAAP (it being agreed that publishing of such financial statements on the Company’s website or with the SEC (including via ▇▇▇▇▇) shall satisfy this clause (A) and it being acknowledged that the financial statements referred to in this clause (A) have been furnished) and (B) unaudited condensed consolidated balance sheets and related condensed consolidated statements of operations, equity and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for each fiscal quarter of the Company ended after April 1, 2025 and at least forty (40) days prior to the Closing Date (it being agreed that publishing of such financial statements on the Company’s website or with the SEC (including via ▇▇▇▇▇) shall satisfy this clause (B)) (together, the “Required Financial Statements”); (ii) at reasonable times and locations (it being understood that any such meeting may take place via videoconference or web conference if mutually agreed among Parent and the Company), and upon reasonable advance notice, participating (and using reasonable best efforts to cause ~~each~~ senior management and appropriate Representatives of ~~its Affiliates and Representatives to, use reasonable best efforts~~ the Company to provide to Buyer such cooperation reasonably requested by Buyer and reasonably required in connection with the Financing or the Alternate Financing, including (to the extent reasonably requested and reasonably required): (iparticipate) ~~participating~~ in a ~~customary and~~ reasonable number of meetings, calls, presentations, road shows, lender presentations, due diligence sessions (including accounting due diligence sessions~~, drafting sessions, road shows~~ ) and sessions with rating ~~agencies; (ii) assisting~~ agencies and otherwise using commercially reasonable efforts to cooperate with ~~the preparation of materials~~ Parent’s marketing efforts for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered or otherwise) and similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit any of the ~~Business~~ Financing and ~~auditors comfort letter; (iii) as promptly as reasonably practical, and~~ assist Parent in no event later than March 31, 2013, furnishing Buyer with (x) audited balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with financial and other information regarding the Business and the Assets as may be reasonably requested by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities contemplated by the Financing, or as otherwise reasonably required obtaining ratings in connection with the Financing, ~~or as otherwise necessary~~ 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; (iii) assisting with the timely preparation and negotiation of materials (including, for the avoidance of doubt, customary rating agency presentations) and definitive documents customarily entered into in connection with debt financing similar to any Financing sought by Parent (such definitive documents, the “Financing Documents”); provided that such cooperation shall only be required to the extent that Parent has furnished to the Company a draft copy of any such Financing Document in order to ~~assist in receiving customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with~~ provide the ~~offering(s) of debt or equity securities contemplated by the Financing (all such information in clause (iii) and this clause~~ Company a reasonable opportunity to review; (iv) using commercially reasonable efforts to cause its independent auditors to (A) provide drafts and executed versions of customary auditors consents and customary comfort letters with respect to financial information relating to the Company and its Subsidiaries as reasonably requested by Parent or as necessary, customary or desirable for financings similar to the Financing, (B) provide assistance in the preparation of pro forma financial statements and information (provided that Parent shall be responsible for the preparation of any pro forma financial statements and pro forma financial information), ~~including the Carve-Out Financials~~(C) attend a reasonable number of accounting due diligence sessions and drafting sessions at reasonable times and places, ~~the “Required Information”)~~and (D) otherwise provide customary assistance; (v) ~~providing information relating~~ using commercially reasonable efforts to (A) take actions reasonably requested by Parent to enable Parent to benefit from the ~~Business that is reasonably available to it to~~ Company’s existing lending relationships in connection with the marketing and syndication of the Financing, (B) cooperate with Financing providers in performing due diligence and (C) assist in obtaining credit ratings; and (vi) in the ~~preparation~~ event that the Company is in possession of any credit agreements, indentures, purchase agreements, currency or interest hedging arrangements, other definitive financing documents, officer’s certificates, customary closing documents, or other certificates or documents material nonpublic information with respect to the Company or its Subsidiaries, if Parent reasonably requests, filing a Current Report on Form 8-K pursuant to the Exchange Act that contains such material nonpublic information with respect to the Company and its Subsidiaries, which Parent determines (and the Company does not reasonably object) to include in a customary “public side” offering or marketing document in connection with the Financing. (b) Notwithstanding anything to the contrary in Section 6.22 and this Section 6.24, neither the Company nor any of its Subsidiaries shall pursuant to Section 6.22 and this Section 6.24: (i) be required to (x) pay any commitment fees or other amounts that are required to be paid pursuant to any Financing ~~contemplated by~~ and (y) pay or incur any other fees, expenses or other liabilities prior to the ~~Financing as may be reasonably requested by Buyer~~Effective Time for which it is not previously or promptly reimbursed or simultaneously indemnified; (viii) ~~furnishing Buyer and their Financing sources as promptly as practicable all financial information~~ be required to ~~be delivered pursuant to the Financing Letter and monthly financial statements for the Business (to the extent prepared in the ordinary course of business); (vii) assisting Buyer to obtain waivers~~cause any director, ~~consents~~officer, ~~estoppels and approvals from other parties to Contracts~~member, ~~material Leases and Easements~~partner, ~~and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents~~accountant, legal ~~opinions~~counsel, ~~surveys, appraisals, engineering reports, environmental and~~ employee or other ~~inspections, title insurance and other documentation and items relating to~~ Representative of the ~~Financing, as reasonably requested by Buyer; provided that (A) nothing herein shall require such cooperation to the extent it would require Seller~~ Company or any of its ~~Affiliates~~ Subsidiaries to take any action that will result in such Person incurring any personal liability; (iii) be required to waive or amend any terms of this Agreement; (iv) be required to take any action that would unreasonably interfere with the ongoing business or operations of the Company; (v) be required to provide any information that is prohibited or restricted from being provided by applicable Law or contractual obligation existing as of the date hereof or is legally privileged (provided, ~~incur~~ however, that the Company shall use its commercially reasonable efforts to provide an alternative means of disclosing or providing such information to the maximum extent permitted by Law or such contractual obligation or to the maximum extent that does not result in a loss of such legal privilege, as applicable, and in the event that the Company or any ~~Liabilities~~of its Subsidiaries not provide access or information in reliance on this clause, ~~pay~~ the Company shall provide notice to Parent that information is being withheld); (vi) be required to, nor shall any ~~fees~~of their directors, ~~reimburse~~ employees, officers, members, partners or managers be required to, adopt resolutions or consents to approve or authorize the execution of the agreements, documents and instruments pursuant to which the Financing is obtained or to execute, deliver or enter into, or perform any ~~expenses~~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, in each case, that would be operative prior to the Pubco Merger Effective Time and any such action, authorization, consent, approval, execution, delivery or performance will only be required of the respective directors, employees, officers, members, partners or managers of the Company and its Subsidiaries who retain their respective positions as of, and immediately after, the Pubco Merger Effective Time (except, in each case, with respect to ~~the Financing~~customary authorization letters or as set forth in Section 6.22); (vii) be required to (or be required to cause their Representatives to) enter into or approve any agreement or other documentation, or agree to any change or modification of any existing agreement or other documentation that would be operative prior to the ~~Closing~~ Pubco Merger Effective Time (except as set forth in Section 6.22); (viii) be required to (or be required to cause their Representatives to) provide any indemnity prior to the Pubco Merger Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of ~~Buyer~~Parent; (ix) be required to (or be required to cause their Representatives to) prepare or deliver any pro forma financial statement, pro forma information, projections or ~~would~~ other forward-looking financial information or to provide any financial or other information (other than using reasonable best efforts to furnish the Required Financial Statements and information necessary or customary for Parent to prepare pro forma financial statements) that is not reasonably available, historically prepared or maintained in the ordinary course of business, including preparing stand-alone financial statements for any Subsidiaries of the Company; or (x) be required to (or be required to cause ~~Seller~~ their Representatives to) provide opinions of internal or ~~any of its Affiliates to breach this Agreement~~ external counsel (except as set forth in Section 6.22(b)). All nonpublic or ~~become unable to satisfy a condition to~~ otherwise confidential information regarding the ~~Closing, (B) nothing herein shall require such cooperation from Seller~~ Company or its ~~Affiliates~~ Subsidiaries obtained by Parent, its Subsidiaries or their respective Representatives pursuant to this Section 6.24 or otherwise from or on behalf of the ~~extent it would unreasonably interfere~~ Company shall be kept confidential in accordance with the ~~ongoing operations of Seller or its Affiliates and (C) there shall be no action~~Confidentiality Agreement; provided that, ~~Liability or obligation of Seller or its Affiliates under any certificate, agreement, arrangement, document or instrument relating to the Financing. Notwithstanding~~ notwithstanding anything to the contrary herein or in ~~this Section 6.10~~the Confidentiality Agreement, ~~neither Seller nor its Affiliates shall~~ such information may be ~~in breach~~ disclosed (i) to prospective lenders, underwriters, initial purchasers, dealer managers and agents during syndication and marketing of the covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth herein. (b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement Financing that enter into confidentiality arrangements customary for financing transactions of the ~~Financing, any other financing and/or~~ same type as the ~~provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement.~~ Financing (~~c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii~~including customary “click-through” confidentiality undertakings) and (ivii) ~~of Section 6.10(a) as may be necessary such that the Required Information does not contain any untrue statement of material fact or omit~~ on a confidential basis to ~~state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading~~rating agencies.

Appears in 1 contract

Sources: Merger Agreement (Viper Energy, Inc.)

Financing Cooperation. (a) ~~For purposes~~ From the date of this Agreement through the earlier of the Closing and the termination of this Agreement, subject to the limitations set forth in this Section ~~6.10~~6.11, and unless otherwise agreed by Buyer, the ~~term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise. Prior~~ Company agrees to ~~the Closing, Seller shall, and shall~~ use reasonable best ~~efforts~~ efforts, and cause its Subsidiaries and its and their respective officers, directors, employees and representatives to ~~cause each of its Affiliates and Representatives to,~~ use their reasonable best ~~efforts~~ efforts, to provide ~~to Buyer~~ such ~~cooperation~~ assistance as is reasonably requested by Buyer ~~and reasonably required~~ in connection with the ~~Financing or the Alternate~~ arrangement of any Debt Financing, ~~including~~ subject to Buyer’s reimbursement obligations set forth herein. (~~to the extent reasonably requested and reasonably required):~~b) Such assistance shall include, without limitation, using reasonable best efforts to: (i) ~~participating~~ furnish Buyer and the Debt Financing Sources as promptly as reasonably practicable (or (x) in the case of any audited financial statements furnished pursuant to clause (A) below, as promptly as reasonably practicable but in no event more than sixty (60) days after the relevant fiscal year, (y) in the case of any unaudited quarterly financial statements furnished pursuant to clause (A) below, other than with respect to the last fiscal quarter of any fiscal year, as promptly as reasonably practicable but in no event more than forty-five (45) days after the relevant fiscal quarter and (z) in the case of clause (C) below, as promptly as reasonably practicable but in no event later than fifteen (15) days after the relevant fiscal quarter) with (A) the Required Information, (B) such other financial and other pertinent information regarding the Company Entities that is, in the case of this clause (B), customary for financings of a type similar to the Debt Financing, in each case, as is reasonably requested in connection with the Debt Financing and (C) customary “flash” or “recent development” revenue information (which may be provided in a ~~customary~~ reasonable range or estimate and on a non-GAAP basis) for any fiscal quarter ending after the date hereof (it being understood that, notwithstanding anything to the contrary herein, none of the Company, its Subsidiaries or their respective officers, directors, employees and representatives shall be required to provide (x) any financial statements other than those required pursuant to the definition of Required Information or (y) any Excluded Information); (ii) participate in (through management with appropriate seniority and expertise) a reasonable number of meetings, presentations, ~~due diligence sessions~~road shows, drafting sessions, ~~road shows~~ due diligence sessions and sessions with rating ~~agencies~~agencies in connection with the Debt Financing at reasonable times and upon reasonable notice to be agreed; (iii) request the independent auditors of the Company to (A) provide, consistent with customary practice, customary auditors’ consents and customary comfort letters (including customary “negative assurance” comfort) with respect to the financial information and customary “negative assurance” comfort with respect to the unaudited financial statements, in each case, relating to the Company Entities as reasonably requested by Buyer and necessary or customary for financings similar to the Debt Financing and (B) attend accounting due diligence sessions in connection with the Debt Financing required pursuant to clause (ii) ~~assisting with~~ of this Section 6.11(b); (iv) assist ▇▇▇▇▇ and the Debt Financing Sources in Buyer’s preparation of ~~materials for rating agency presentations,~~ any offering documents, registration statements, private placement memoranda, bank information memoranda, ~~prospectuses (registered or otherwise)~~ any materials for rating agency presentations and similar documents ~~for~~ required in connection with the Debt Financing, including execution and delivery of customary ~~representation~~ authorization letters ~~in connection~~ related thereto (including customary representations with an audit of the Business and auditors comfort letter; (iii) as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer with (x) audited balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition respect to the absence of material non-public information ~~required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer~~ in the public-side versions of documents and the ~~other parties~~ absence of material misstatements or omissions) and customary chief financial officer certificate with respect to certain financial information in the ~~Financing Letter with financial and other information regarding the Business and the Assets as may be reasonably requested~~ offering documents not otherwise covered by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities 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 “negative assurance” comfort) from independent accountants in connection~~ letters described above, and provide reasonable cooperation with the ~~offering(s)~~ due diligence efforts of ~~debt or equity securities contemplated by~~ the Debt Financing ~~(all such information in clause (iii)~~ Sources to the extent reasonable and ~~this clause (iv), including the Carve-Out Financials, the “Required Information”)~~customary and reasonably requested; (v) providing information relating to the Business that is reasonably available to it to assist in the preparation of any credit agreements, indentures, purchase agreements, currency or interest hedging arrangements, other definitive financing documents, officer’s certificates, customary closing documents, or other certificates or documents solely with respect to the Company Entities, facilitate the identification and pledging of, granting a security interest in and obtaining perfection of any Liens on, collateral in connection with the Debt Financing; (vi) obtain the Payoff Letters and, with respect to the Closing Debt to be Discharged, documents reasonably requested by ▇▇▇▇▇ or the Debt Financing ~~contemplated~~ Sources for the release on the Closing Date of all related Liens; (vii) provide as promptly as reasonably practicable (and in any event, no less than three (3) Business Days prior to the Closing Date) all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including (A) the USA Patriot Act and (B) a certification regarding beneficial ownership as required by 31 C.F.R. §1010.230 to any Debt Financing Source that has requested such certification, in each case, relating to the Company Entities, in each case, to the extent reasonably requested of the Company in writing by ▇▇▇▇▇ or the Debt Financing Sources at least nine (9) Business Days prior to the Closing Date; (viii) execute and deliver definitive documents and reasonable and customary closing certificates relating to the Debt Financing as may be reasonably requested by ~~Buyer; (vi) furnishing Buyer~~ ▇▇▇▇▇ and ~~their Financing sources as promptly as practicable all financial information~~ required to ~~be delivered pursuant~~ satisfy the closing conditions under the Debt Financing, subject to the ~~Financing Letter and monthly financial statements for~~ occurrence of the Business (to the extent prepared in the ordinary course of business); (vii) assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are boundClosing; and (~~viii~~ix) ~~cooperating with Buyer in its efforts to obtain accountants’ comfort Letter~~take all corporate or company action, ~~consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating~~ subject to the ~~Financing~~occurrence of the Closing, as reasonably requested by ~~Buyer; provided~~ ▇▇▇▇▇ that is necessary to permit the consummation of the Debt Financing, including any high yield financing, and to permit the proceeds thereof to be made available at the Closing Date to consummate the transactions contemplated hereunder. (Ac) Notwithstanding anything to the contrary, nothing ~~herein~~ in this Agreement shall require such cooperation contemplated by this Section 6.11 to the extent it would (A) unreasonably disrupt or interfere with the conduct of the business or ongoing operations of the Company Entities, (B) require ~~Seller~~ the Company Entities to agree to pay any commitment or other fees, reimburse any expenses, provide any security or give any indemnities prior to the Closing, (C) require delivery of any opinion of internal or external counsel, (D) require the Company Entities to take any action that would reasonably be expected to conflict with, or result in any material (with respect to Material Contracts) violation or breach of, or default (with or without notice or lapse of time, or both) under, any organizational document of any of the Company Entities, any applicable Law or any Material Contract to which any of the Company Entities is a party (and in the case of Contracts, not entered into in contravention of this clause), (E) require any of the Company Entities to disclose or provide any information that is subject to attorney-client privilege or would reasonably be expected to result in the disclosure of any trade secrets, (F) require the Company or any of its Affiliates to ~~waive~~ agree to any contractual obligation relating to the Debt Financing that is not conditioned upon the Closing and that does not terminate without liability to the Company or ~~amend~~ any ~~terms~~ of its Affiliates upon the termination of this ~~Agreement~~Agreement (except with respect to the provision of authorization letters and certificates to provide comfort referred to in clause (b)(iv) above), (G) require any of the Company Entities to consent to any grant of any Lien on or security interest in the assets of the Company or any of its Subsidiaries the effectiveness of which is not conditioned upon the occurrence of the Closing or the pre-filing of UCC-1 financing statements prior to the Closing in connection therewith, (H) require any of the Company Entities to prepare (x) pro forma financial information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro forma financial information; provided that the Company will provide reasonable and customary assistance in the preparation of pro forma financial statements prepared by the Buyer, (y) any description of all or any component of the Debt Financing, or (z) projections, risk factors or other forward-looking statements relating to all or any component of the Debt Financing, (I) require any of the Company Entities to take any action that would cause the breach of any representation, warranty, covenant or agreement in this Agreement or (J) require any of the Company Entities to take any action that would cause any director, officer or employee or stockholder of any of the Company Entities to incur personal liability (as opposed to liability in his or her capacity as an officer of such Person); provided, further, that none of the Company Entities, nor any ~~Liabilities~~Persons who are employees, ~~pay~~ directors or officers thereof, shall be required to (I) pass resolutions or consents to approve or authorize the Debt Financing or deliver any ~~fees, reimburse any expenses~~certificates in connection with the Debt Financing at or prior to the Closing, in each case, except those which are effective as of and not prior to and subject to the occurrence of the Closing Date (other than customary representation letters and authorization letters referred to above and customary representation letters required by the Company’s auditors in connection with the delivery of the “comfort letters” referred to herein and certificates to provide comfort referred to in clause (b)(iv)), (II) pass resolutions or consents, or execute any agreement or certificate (other than customary representation letters and authorization letters referred to above and customary representation letters required by the Company’s auditors in connection with the delivery of the “comfort letters” referred to herein), unless the relevant employees, directors or officers passing or executing such resolutions, consents, agreements or certificates will continue in such positions (or similar positions) after Closing or (III) prepare or provide any Excluded Information. Neither Buyer nor the Debt Financing Sources shall have the right to perform any investigative procedures that involve physical disturbance or damage to any property or other assets of the Company or any of its Subsidiaries. (d) On the Closing Date or following the termination of this Agreement, Buyer shall promptly reimburse the Company for all reasonable and documented out-of-pocket costs and expenses incurred by the Company and its Subsidiaries in connection with the cooperation contemplated by this Section 6.11; provided, that Buyer shall not be required to reimburse the Company for costs and expenses with respect to ~~the Financing~~financial statements, financial information or other materials prepared prior to the ~~Closing for~~ date hereof or, after the date hereof, that the Company would have prepared in the Ordinary Course of Business in the absence of the Debt Financing. (e) The Company hereby consents to the use of all 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 any of its Affiliates or the reputation or goodwill of the Company or its Affiliates. (f) Buyer shall indemnify and hold harmless the Company Entities and their respective officers, directors, employees and representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments, and penalties suffered or incurred by any of them in connection with the Debt Financing or any requested assistance or activities provided in connection therewith; provided, that the foregoing shall not apply to any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments, and penalties which ~~it has not received prior reimbursement~~ are determined by a final non-appealable judgment of a court of competent jurisdiction to arise from willful misconduct, bad faith or gross negligence of the Company, any of its Subsidiaries or any of their respective officers, directors, employees and representatives. (g) All confidential information provided by or on behalf of ~~Buyer~~the Company or its Subsidiaries to Buyer pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement, ~~or would cause~~ except that Buyer shall be permitted to disclose such information to its Debt Financing Sources and prospective Debt Financing Source Parties as necessary and consistent with customary practices in connection with the Debt Financing, subject to customary confidentiality undertakings. (h) The obligation of Seller and the Company Entities under this Section 6.11 shall be deemed fulfilled and satisfied unless (A) the Seller or any ~~of its Affiliates to breach~~ Company Entity have materially breached their obligations under this ~~Agreement or become unable to satisfy a condition to the Closing~~Section 6.11, (B) ~~nothing herein shall require~~ Buyer has notified the Seller of such ~~cooperation from Seller or its Affiliates~~ breach in writing, detailing in good faith reasonable steps that comply with this Section 6.11 in order to ~~the extent it would unreasonably interfere with the ongoing operations of Seller or its Affiliates~~ cure such breach and (C) ~~there shall be no action, Liability or obligation of~~ Seller or ~~its Affiliates under~~ any ~~certificate, agreement, arrangement, document~~ Company Entity have not taken such steps or ~~instrument relating~~ otherwise cured such breach with reasonably sufficient time prior to the Outside Date to consummate the Debt Financing. Notwithstanding anything to the contrary in this Section 6.10, neither Seller nor its Affiliates shall be in breach of the covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth herein. (b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement of the Financing, any other financing and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement. (c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii) and (iv) of Section 6.10(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 made therein, in the light of the circumstances under which they were made, not misleading.

Appears in 1 contract

Sources: Equity Purchase Agreement (Xerox Corp)

Financing Cooperation. (a) ~~For purposes of this Section 6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise.~~ Prior to the Closing, ~~Seller~~ the Company shall, and shall ~~use reasonable best efforts to~~ cause ~~each of~~ its ~~Affiliates and Representatives~~ Subsidiaries to, ~~use reasonable best efforts to~~ provide to ~~Buyer~~ Parent, Merger Sub 1 and Merger Sub 2, in each case at Parent’s sole cost and expense, such reasonable cooperation as is customary and reasonably requested by ~~Buyer and reasonably required~~ Parent in connection with Parent’s arrangement of Debt Financing or the issuance of Senior Notes in connection with the ~~Financing or the Alternate Financing~~transactions contemplated by this Agreement, ~~including (to the extent reasonably requested and reasonably required):~~including: (i) ~~participating in a customary~~ furnishing Parent, Merger Sub 1 and ~~reasonable number of meetings~~Merger Sub 2, ~~presentations, due diligence sessions, drafting sessions, road shows and sessions with rating agencies;~~ (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered or otherwise) and similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iiiA) as promptly as ~~reasonably practical,~~ practicable and in no ~~event~~ later than March 31, ~~2013, furnishing Buyer with~~ 2015 (x) with the audited consolidated balance ~~sheets for~~ sheet of the ~~Business~~ Company and its Subsidiaries as at of December 31, ~~2011~~ 2014, and ~~2012~~the related audited statements of operations, cash flow and changes in members’ equity, together with the notes thereto, for the fiscal year ended December 31, 2014 (each of which shall be prepared in accordance with GAAP) (the “Audited 2014 Financial Statements”), and (y) ~~audited statements~~ an unqualified audit opinion of ~~income and cash flows for the Business for the three (3) years ended December 31, 2012~~ Skoda ▇▇▇▇▇▇▇ with respect to such Audited 2014 Financial Statements and (zB) within forty-five (45) days of the end of ~~the relevant fiscal quarter, unaudited interim financial statements for~~ each fiscal quarter ~~ending after January 1~~ended subsequent to December 31, ~~2013~~ 2014 and at least forty-five (~~collectively, the “Carve-Out Financials”); (iv~~45) ~~in addition~~ days prior to the ~~information required pursuant to clause~~ Closing Date, unaudited consolidated balance sheets of the Company and its Subsidiaries as of the end of, and the related unaudited statements of operations, cash flow and changes in members’ equity for, such fiscal quarter (~~iii~~each of which shall be prepared in accordance with GAAP), ~~above, as promptly as reasonably practical, furnishing Buyer~~ and which unaudited financial statements shall be subject to a customary SAS 100 review by the Company’s independent auditors) and such other ~~parties to the Financing Letter with~~ financial ~~and other~~ information ~~regarding the Business and the Assets as may be~~ reasonably requested by ~~Buyer~~ Parent that would be reasonably necessary for Parent’s Financing Sources to receive customary accountants’ comfort letters; provided that, for the avoidance of doubt, in no event shall the Company or any of its Subsidiaries be required to provide (~~including in connection with Buyer’s preparation of~~ x) pro forma financial ~~statements), including unaudited interim financial statements, financial data, projections, audit reports and other information~~ statements or pro forma adjustments reflecting the Debt Financing or Senior Notes or (y) any description of all or any component of the ~~type required by Regulation S-X and Regulation S-K of~~ Debt Financing or Senior Notes) (the ~~Securities Act of 1933 for a registered public offering, and of type and form customarily included~~ information described in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities 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 “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt or equity securities contemplated by the Financing (all such information in clause (iii) and this ~~clause (iv~~Section 6.12(a)(i)~~, including the Carve-Out Financials~~, the “Required Financial Information”); (vii) ~~providing~~ using reasonable best efforts to, upon reasonable advance notice and during normal business hours, participate in due diligence sessions with prospective financing sources and their representatives, and provide reasonable access to documents and other information ~~relating~~ in connection with customary due diligence investigations; (A) using reasonable best efforts to participate (including making senior officers available) in a reasonable number of requested and customary meetings (including customary one-on-one meetings that are requested in advance with the ~~Business that is~~ parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, the Debt Financing and the Senior Notes and the Company’s senior management), presentations and road shows in connection with the syndication or other marketing of the Debt Financing and the Senior Notes, and (B) provide direct contact between appropriate members of senior management, on the one hand, and prospective lenders and purchasers of the Debt Financing and the Senior Notes, on the other hand; (iv) reasonably ~~available to it to assist~~ assisting (including participating in drafting sessions) with the preparation of ~~any credit agreements~~materials, ~~indentures~~in each case to the extent such materials relate to information concerning the Company, ~~purchase agreements~~for rating agency presentations, ~~currency~~ lender presentations, offering documents, private placement memorandum, bank information memorandum and similar documents customarily required in connection with the Debt Financing or ~~interest hedging arrangements, other~~ offering of Senior Notes; (v) agreeing to enter into such agreements (including customary definitive financing and related documents), including customary pay-off letters (it being understood and agreed that the Company’s obligations to provide payoff letters are as set forth in Section 6.13) and perfection certificates, and using its reasonable efforts to (A) deliver such officer’s certificates (including solvency certificates) and lien releases, if any, as are customary ~~closing documents~~in financings of such type and (B) otherwise grant, and provide customary materials that facilitate the perfection or ~~other certificates~~ enforcement of, liens on, the assets of the Company or ~~documents with respect~~ any of its Subsidiaries pursuant to ~~the Financing contemplated by the Financing~~ such agreements as may be reasonably requested ~~by Buyer~~(including using such reasonable best efforts to provide original copies of all certificated securities (with transfer powers executed in blank), control agreement, surveys, title insurance and mortgages), provided that no obligation of the Company or any of its Subsidiaries under any such agreement, pledge or grant shall be effective until the Effective Time; (vi) ~~furnishing Buyer~~ (A) requesting its independent accountants to provide consent to Parent to use their audit reports relating to the Company in connection with the Debt Financing and issuance of Senior Notes and, upon reasonable advance notice and during normal business hours, participate in due diligence sessions with prospective financing sources and their ~~Financing sources as promptly as practicable all financial information required~~ representatives in a manner customary for an offering of the type similar to ~~be delivered pursuant to~~ an offering of the ~~Financing Letter~~ Senior Notes, and ~~monthly financial statements for~~ (B) assist Parent in obtaining accountants’ comfort letters, including customary negative assurance from the ~~Business (to the extent prepared in the ordinary course of business);~~Company’s independent accountants on customary terms; and (vii) ~~assisting Buyer to obtain waivers, consents, estoppels~~ furnishing Parent with reasonable documents or other information required by bank regulatory authorities and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Financing, as reasonably requested in writing by ~~Buyer; provided that (A) nothing herein shall require such cooperation to~~ the ~~extent it would require Seller~~ parties acting as lead arrangers or ~~any of its Affiliates to waive~~ agents for, or ~~amend any terms of this Agreement~~lenders under, ~~incur any Liabilities, pay any fees, reimburse any expenses, in each case~~the Debt Financing and/or the Senior Notes, with respect to the ~~Financing~~Debt Financing and Senior Notes under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act of 2011, that has been reasonably requested by Parent at least ten (10) Business Days prior to Closing. (b) Notwithstanding the ~~Closing for which it has not received prior reimbursement by or on behalf of Buyer~~foregoing, ~~or would cause Seller~~ in no event shall the Company or any of its ~~Affiliates to breach this Agreement~~ Subsidiaries be required to: (i) bear any cost or ~~become unable to satisfy a condition~~ expense, pay any fee, or incur any other actual or potential liability in connection with the Debt Financing and Senior Notes prior to the ~~Closing,~~ Effective Time (Bit being understood that the Company shall bear the fees and expenses related to the audit of its financial statements); (ii) ~~nothing herein shall require such cooperation from Seller or its Affiliates~~ take any actions to the extent it such actions would unreasonably interfere with the ongoing business or operations of ~~Seller~~ the Company or any of its ~~Affiliates and~~ Subsidiaries; (Ciii) ~~there shall~~ take any action that would reasonably be ~~no action~~expected to conflict with, ~~Liability~~ or ~~obligation~~ result in any violation or breach of, or default (with or without notice or lapse of ~~Seller~~ time, or both) under, the Company’s or any of its ~~Affiliates under~~ Subsidiary’s Organizational Documents, any ~~certificate~~applicable Laws, the Credit Agreements or any other Contract to which the Company or any of its Subsidiaries is a party; or (iv) execute or deliver, or take any corporate or other action to adopt or approve, any document, agreement, ~~arrangement, document~~ certificate or instrument ~~relating~~ with respect to the ~~Financing. Notwithstanding anything to~~ Debt Financing or Senior Notes, including any pledge or security documents or closing certificates, other than those effective no earlier than, and conditioned on the ~~contrary in this Section 6.10~~occurrence of, ~~neither Seller nor its Affiliates shall be in breach of~~ the covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth herein. (b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement of the Financing, any other financing and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal RequirementEffective Time. (c) ~~Seller will~~ The Company hereby consents to the use of its ~~reasonable best efforts~~ and its Subsidiaries’ logos in connection with the Debt Financing and/or offering of Senior Notes if such logos are used solely in a manner that is not intended to ~~update Required Information~~ or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries or any of their logos and on such other customary terms and conditions as the Company shall reasonably impose. (d) Parent acknowledges and agrees that any access or information contemplated to be provided ~~to Buyer~~ by the Company or any of its Subsidiaries pursuant to ~~clauses (iii~~this Section 6.12 shall only be required to be provided by the Company or any of its Subsidiaries in accordance with Section 6.07(a) and ~~(iv) of~~ Section ~~6.10(a) as may~~ 6.07(c), except that Parent, Merger Sub 1 and Merger Sub 2 shall be ~~necessary~~ permitted to disclose such ~~that~~ information to 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 made therein~~Financing Sources, ~~in the light~~ rating agencies and prospective lenders and investors during syndication of the ~~circumstances under which they were made~~Debt Financing or any permitted replacement, ~~not misleading~~amended, modified or alternative financing subject to the ratings 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 Senior Notes or any other offering of Parent’s securities used to finance the consummation of the transactions contemplated hereby. (e) Parent shall promptly, upon request by the Company, reimburse the Company for all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Company or any of its Subsidiaries and their respective representatives in connection with the Debt Financing and Senior Notes, including the cooperation of the Company and its Subsidiaries and representatives contemplated by this Section 6.12, and shall 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, costs and expenses suffered or incurred by any of them in connection with the Debt Financing and Senior Notes and any information used in connection therewith, except with respect to any information provided by or on behalf of the Company or any of its Subsidiaries.

Appears in 1 contract

Sources: Merger Agreement (Rite Aid Corp)

Financing Cooperation. (a) ~~For purposes of this Section 6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise~~. Prior to the ~~Closing~~Effective Time (or the earlier termination of this Agreement pursuant to Section 8.1), ~~Seller~~ the Company shall, and shall cause the Company Subsidiaries to, use its and their reasonable best efforts to, and shall use its reasonable best efforts to cause ~~each of~~ its ~~Affiliates~~ and their respective Representatives to, ~~use~~ provide customary cooperation and customary financial information, in each case that is reasonably requested by Parent in connection with any financing (the “Financing”) obtained or to be obtained by Parent for the purpose of financing the Transactions or any transaction undertaken in connection therewith (it being understood that the receipt of any such financing is not a condition to Parent’s obligation to consummate the Merger), including by using reasonable best efforts to ~~provide~~ (i) furnish, or cause to ~~Buyer such cooperation~~ be furnished, to Parent (x) audited consolidated balance sheets and related consolidated statements of operations and cash flows for the Company for each of the three most recently completed fiscal years of the Company ended at least one hundred eighty (180) days prior to the Closing Date prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year and (y) limited unaudited consolidated balance sheets and related consolidated statements of operations and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes and in a manner consistent with past practice) for each subsequent fiscal quarter ended on a date that is at least sixty (60) days before the Closing Date, (ii) cause the Company’s and the Company Subsidiaries’ independent accountants, as reasonably requested by ~~Buyer~~ Parent, to consent to the use of their audit reports on the financial statements of the Company and ~~reasonably required~~ the Company Subsidiaries in any materials relating to the Financing or in connection with any filings made with the SEC or pursuant to the Securities Act or Exchange Act in connection with the Financing and to provide any “comfort letters” (including drafts thereof which such accountants are prepared to issue at the time of pricing and at closing of any offering or placement of the ~~Alternate~~ Financing~~, including (to the extent~~ ) necessary and reasonably requested by Parent in connection with any debt capital markets transaction comprising a part of the Financing and ~~reasonably required): (i) participating~~ to participate in a reasonable and customary ~~and reasonable number of meetings, presentations,~~ due diligence sessions, ~~drafting sessions~~which sessions shall be telephonic or held by videoconference and held at reasonable times, road shows and sessions with rating agencies; (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered or otherwise) and similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii) ~~as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer~~ assist Parent with ~~(x) audited balance sheets for~~ the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with financial and other information regarding the Business and the Assets as may be reasonably requested by Buyer (including in connection with Buyer’s preparation of pro forma financial ~~statements), including unaudited interim~~ information and pro forma financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, statements necessary or customary to ~~consummate the offering(s) of debt~~ be prepared or ~~equity securities contemplated by the Financing, or as otherwise reasonably required~~ delivered in connection with financings of the ~~Financing, or~~ same type as otherwise necessary in order to assist in receiving customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt or equity securities contemplated by the Financing ~~(all such information in clause (iii)~~ and ~~this clause~~ (iv~~), including the Carve-Out Financials, the “Required Information”); (v~~) ~~providing information relating to the Business that is reasonably available to it to assist in the preparation~~ cooperate with providers of any credit agreements, indentures, 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 Buyer; (vi) furnishing Buyer and their Financing sources as promptly as practicable all financial information required to be delivered pursuant to the Financing Letter and monthly financial statements for the Business (to the extent prepared in ~~the ordinary course of business); (vii) assisting Buyer to obtain waivers~~performing due diligence; provided, ~~consents~~however, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Financing, as reasonably requested by Buyer; provided that (A) ~~nothing herein shall require~~ no such cooperation shall be required to the extent it would (i) unreasonably disrupt the conduct of the Company’s business, (ii) require ~~Seller~~ the Company or the Company Subsidiaries to incur any fees, expenses or other liability prior to the Effective Time for which it is not promptly reimbursed or simultaneously indemnified, (iii) be reasonably expected to cause any director, officer or employee of the Company or any ~~of its Affiliates~~ Company Subsidiary to incur any personal liability, (iv) require the Company or any Company Subsidiary to waive or amend any terms of this ~~Agreement~~Agreement or (v) require the Company to provide any information that would conflict with any confidentiality obligations applicable to the Company or any Company Subsidiary, ~~incur~~ is prohibited or restricted by applicable Law or is legally privileged (provided, however, that the Company shall notify Parent if it is withholding any ~~Liabilities, pay~~ information in reliance on this clause (v) and use its commercially reasonable efforts to make appropriate substitute arrangements to permit reasonable disclosure not in violation of such confidentiality obligations or Law or to allow for such access or disclosure to the maximum extent that does not result in a loss of such legal privilege); and (B) the Company and the Company Subsidiaries shall not be required to execute any ~~fees, reimburse~~ credit or security documentation or any ~~expenses~~other definitive agreement (other than customary authorization or management representation letters) or provide any indemnity, in each ~~case, with respect to the Financing~~case of this clause (B), prior to the ~~Closing for which it has not received prior reimbursement by or on behalf~~ Effective Time; provided, further, that in no event shall the Company’s breach of ~~Buyer, or would cause Seller or~~ any of its Affiliates to breach this Agreement or become unable to satisfy a condition to the Closing, (B) nothing herein shall require such cooperation from Seller or its Affiliates to the extent it would unreasonably interfere with the ongoing operations of Seller or its Affiliates and (C) there shall be no action, Liability or obligation of Seller or its Affiliates under any certificate, agreement, arrangement, document or instrument relating to the Financing. Notwithstanding anything to the contrary obligations in this Section ~~6.10, neither Seller nor its Affiliates shall~~ 6.13(a) be considered in ~~breach~~ determining the satisfaction of the ~~covenant~~ condition set forth in ~~this~~ Section ~~6.10 if it has acted in good faith~~ 7.2(b) unless such breach is the primary cause of Parent being unable to ~~comply with~~ obtain the cooperation and assistance set forth herein. (b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement proceeds of the ~~Financing, any other financing and/or~~ Financing at the ~~provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement~~Effective Time. (c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii) and (iv) of Section 6.10(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 made therein, in the light of the circumstances under which they were made, not misleading.

Appears in 1 contract

Sources: Merger Agreement (CyberArk Software Ltd.)

Financing Cooperation. (a) ~~For purposes of this~~ Subject in all respects to Section ~~6.10~~5.16(d) and Section 5.16(f), the ~~term “Financing” shall include any Permanent Financing (as defined in~~ Sellers and each of the ~~Financing Letter), whether for debt, equity or otherwise. Prior to the Closing, Seller~~ Companies shall, and shall cause each of their respective representatives (including their auditors) to, use their reasonable best efforts to ~~cause each of its Affiliates and Representatives to, use reasonable best efforts to provide to~~ cooperate with Buyer ~~such cooperation reasonably requested by Buyer and reasonably required~~ in connection with the Financing or and the ~~Alternate Financing~~marketing efforts in connection therewith, ~~including (to the extent reasonably requested and reasonably required):~~including: (i~~) participating in a customary and reasonable number of meetings, presentations, due diligence sessions, drafting sessions, road shows and sessions with rating agencies; (ii~~) assisting with the preparation of (and to the extent reasonably requested by Buyer, provide information and materials ~~for rating agency presentations~~to be used in the preparation of) customary confidential information memoranda, offering memoranda, registration statements, prospectuses, prospectus supplements and similar offering documents, ~~private placement memoranda~~customary rating agency presentations and customary lender and investor presentations, ~~bank information memoranda, prospectuses~~ in each case necessary and customary for financings of the type contemplated by the Financing (~~registered or otherwise~~the “Syndication and Offering Materials”); (ii) executing and ~~similar~~ delivering on behalf of the Companies customary definitive financing documents ~~for~~ to the ~~Financing~~extent reasonably requested by Buyer, including ~~execution~~ certificates and ~~delivery of customary representation letters in connection with an audit of~~ other documents, to the ~~Business~~ extent reasonably requested by Buyer, provided that the Companies shall not be required to execute any definitive financing documentation (and ~~auditors comfort letter~~no such documentation shall be effective) until the Closing Date has occurred; (iii) ~~as promptly as reasonably practical,~~ furnishing to the Buyer (A) the audited combined balance sheet and ~~in no event later than March 31, 2013, furnishing Buyer with (x) audited balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited~~ related statements of income and cash ~~flows~~ flows, including related notes thereto, of the Food Business for each of the three years ending more than ninety (90) days prior to the Closing Date (or, after the Closing Date, more than ninety (90) days prior to the date of completion of any Permanent Financing); (B) the unaudited interim combined balance sheet and the related statements of income and cash flows, including related notes thereto, of the Food Business for (i) the interim period ended June 30, 2017 and (ii) any interim period or periods after June 30, 2017 ending more than forty-five days prior to the Closing Date (or, after the Closing Date, more than forty-five days prior to the date of completion of any Permanent Financing), together with the comparative unaudited financial statements for the corresponding period in the prior year, which financial statements shall have been reviewed by the Companies’ independent auditors in accordance with PCAOB AS 4105 (Interim Financial Information) (it being understood and agreed that the financial statements in clauses (A) and (B) of this Section 5.16(a)(iii) shall comply as to form in all material respects with GAAP and the accounting requirements of the Securities Act and the rules and regulations promulgated thereunder applicable to a registration statement on Form S-3 filed with the SEC); (C) all other financial statements, financial data and other financial or operating information regarding the Food Business, in each case covering the periods specified in clauses (A) and (B) above, that are required by the Securities Act for a registered public offering of securities by Buyer for inclusion in a registration statement, prospectus or prospectus supplement with respect to such securities of Buyer; and (D) information regarding the Food Business reasonably necessary to assist Buyer in preparing pro forma financial statements required by SEC Regulation S-X (which shall include unaudited combined statements of income of the Food Business for the three ~~(3) years~~ months ended December 31, ~~2012 and~~ 2016 to the extent such period is required to prepare such pro forma financial statements) (~~z) within forty-five (45) days of~~ the ~~end of the relevant fiscal quarter, unaudited interim~~ financial statements ~~for each fiscal quarter ending after January 1~~and other information in clauses (A) through (D), ~~2013 (~~collectively, the “~~Carve-Out Financials~~Required Permanent Financing Information”); (iv) cooperating with Buyer in ~~addition~~ the preparation of customary pro forma financial statements to be included in Syndication and Offering Materials, including providing access to audit work papers and assistance from key personnel; provided that neither the Seller nor the Companies shall be responsible for the preparation of such pro forma financial statements or any related pro forma adjustments; (v) requiring the Companies’ independent registered accounting firm to (A) provide customary consents to the ~~information required~~ inclusion of their audit reports and review reports with respect to the financial statements furnished pursuant to ~~clause~~ Section 5.16(a)(iii) in any Form 8-K, marketing materials or registration statements of Buyer filed with the SEC, (~~iii)~~B) provide customary comfort letters (including customary “tick and tie” and “negative assurance” comfort) in connection with any capital markets transaction comprising a part of the Permanent Financing to the applicable underwriters, ~~above~~initial purchasers or placement agents thereof in each case, ~~as promptly as reasonably practical~~in each case, ~~furnishing~~ on customary terms and consistent with the customary practice of such independent registered accounting firm, including by executing and delivering any customary representation letters to the independent registered accounting firm in connection therewith and (C) cooperate with the Permanent Financing consistent with their customary practice, including by participating in reasonable and customary due diligence activities of Buyer and the ~~other parties~~ Financing Sources (including by participating in a reasonable number of accounting due diligence sessions at times and locations reasonably acceptable to the ~~Financing Letter with financial and other information regarding~~ Companies); (vi) consenting to the ~~Business and the Assets as may be reasonably requested by Buyer (including in connection with Buyer’s preparation~~ use of ~~pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information~~ each of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities contemplated by the Financing, or as otherwise reasonably required Companies’ logos in connection with the Financing, provided that such logos are used solely in a manner that is not intended to or ~~as otherwise necessary in order~~ is reasonably likely to ~~assist in receiving~~ harm or disparage any of the Companies; and (vii) cooperating reasonably with reasonable and customary ~~“comfort” (including “negative assurance” comfort) from independent accountants in connection with the offering(s)~~ due diligence efforts of ~~debt or equity securities contemplated by~~ the Financing ~~(all such information in clause (iii) and this clause (iv)~~Sources, including by (A) following reasonable prior notice to the ~~Carve-Out Financials~~Sellers and the Companies, participating in a reasonable number of due diligence sessions with Buyer and the ~~“Required Information”);~~ Financing Sources and (vB) providing ~~information relating~~ to Buyer promptly, and in any event at least three (3) Business Days prior to the ~~Business that is reasonably available to it to assist in the preparation of any credit agreements~~Closing Date, ~~indentures, purchase agreements, currency or interest hedging arrangements,~~ with all documentation and other ~~definitive financing documents, officer’s certificates, customary closing documents, or other certificates or documents~~ information required by regulatory authorities with respect to the Bridge Financing ~~contemplated by~~ under applicable “know your customer” and anti-money laundering rules and regulations, including the ~~Financing as may be reasonably requested by Buyer; (vi) furnishing Buyer and their Financing sources as promptly as practicable all financial information~~ PATRIOT Act, that is required ~~to be delivered pursuant to the Financing Letter and monthly financial statements for the Business (to the extent prepared in the ordinary course~~ under paragraph 4 of business); (vii) assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Financing, as reasonably requested by Buyer; provided that (A) nothing herein shall require such cooperation to the extent it would require Seller or any of its Affiliates to waive or amend any terms of this Agreement, incur any Liabilities, pay any fees, reimburse any expenses, in each case, with respect to the Financing, prior to the Closing for which it has not received prior reimbursement by or on behalf of Buyer, or would cause Seller or any of its Affiliates to breach this Agreement or become unable to satisfy a condition to the Closing, (B) nothing herein shall require such cooperation from Seller or its Affiliates to the extent it would unreasonably interfere with the ongoing operations of Seller or its Affiliates and (C) there shall be no action, Liability or obligation of Seller or its Affiliates under any certificate, agreement, arrangement, document or instrument relating to the Financing. Notwithstanding anything to the contrary in this Section 6.10, neither Seller nor its Affiliates shall be in breach Exhibit B of the ~~covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth herein~~Commitment Letter. (b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement of the Financing, any other financing and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement. (c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii) and (iv) of Section 6.10(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 made therein, in the light of the circumstances under which they were made, not misleading.

Appears in 1 contract

Sources: Stock Purchase Agreement (McCormick & Co Inc)

Financing Cooperation. (a) ~~For purposes of this Section 6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise.~~ Prior to the Closing, Seller ~~shall~~shall provide and shall cause its Subsidiaries to provide, and shall use its reasonable best efforts to cause ~~each~~ its Representatives to provide, all cooperation reasonably requested by Purchaser that is necessary or advisable for the arrangement and syndication of ~~its Affiliates and Representatives to~~the Debt Financing of the type contemplated by the Debt Commitment Letter as in effect on the date hereof (including any Second Lien Replacement), ~~use~~ including by (i) using reasonable best efforts to provide to Buyer such cooperation reasonably requested by Buyer and reasonably required in connection with the Financing or the Alternate Financing, including (to the extent reasonably requested and reasonably required): (i) participating participate in a ~~customary and~~ reasonable number of meetings, presentations, road shows, due diligence ~~sessions, drafting sessions, road shows~~ sessions and sessions with rating agencies; , at reasonable times and with reasonable advance notice, (ii) ~~assisting~~ to the extent required by such Debt Financing, using reasonable best efforts to facilitate the pledging of collateral (including by delivering to Purchaser at Closing, to the extent in existence at such time, original share certificates with respect to the Purchased Entities’ domestic Subsidiaries and the domestic Purchased Entities’ first-tier foreign Subsidiaries), effective no earlier than the Closing, (iii) furnishing to Purchaser and the Lenders (A) the unaudited combined balance sheet of the Business as of September 30, 2018 (and, no later than 60 days after September 30, 2019, the unaudited combined balance sheet of the Business as of September 30, 2019; it being further agreed that, without limiting Seller’s obligation as set forth above in this parenthetical clause, if Seller shall have filed with the Securities and Exchange Commission its Annual Report on Form 10-K for the fiscal year ended September 30, 2019, Seller shall use its reasonable best efforts to furnish such balance sheet to Purchaser and the Lenders as soon as reasonably practicable after such filing) and, in each case, the related unaudited combined statements of operations and unaudited combined statements of cash flows of the Business for the fiscal years then ended, (B) the unaudited combined balance sheets and the related unaudited combined statements of operations and unaudited combined statements of cash flows of the Business for (x) the nine months ended as of June 30, 2019 and (y) no later than 40 days after the end of such fiscal quarter, each subsequent fiscal quarter of the Business ended thereafter (other than the fourth fiscal quarter of any fiscal year), in the case of each of clauses (A) and (B), which shall not be required to include footnotes (and Purchaser hereby acknowledges receipt of the financial statements described in clauses (A) (other than the parenthetical therein) and (B)(x) and acknowledges that financial statements required pursuant to clause (B)(y) shall satisfy such requirement if they are in the form of those previously provided in satisfaction of clause (B)(x)) and (C) any customary information regarding the Business necessary for Purchaser to prepare the pro forma financial information required by Section (f)(iv) of Exhibit D to the Debt Commitment Letter as in effect as of the date hereof, (iv) using reasonable best efforts to assist with the preparation of ~~materials for~~ customary rating agency presentations~~, offering documents, private placement memoranda~~, bank information memoranda, ~~prospectuses~~ lender presentations and other customary marketing and syndication materials reasonably and customarily required in connection with such Debt Financing (~~registered~~ including assistance with the preparation of “public” versions thereof), (v) executing and delivering customary authorization letters authorizing the distribution of customary rating agency presentations, bank information memoranda, lender presentations and other customary marketing and syndication materials reasonably and customarily required in connection with such Debt Financing (and containing a representation to the Lenders that the public side versions of such documents, if any, do not include information other than information that is either publicly available (or ~~otherwise~~could be derived from publicly available information) or not material with respect to the Seller or any of its securities, for purposes of United States federal and ~~similar documents for~~ state securities laws), (vi) using reasonable best efforts to facilitate customary due diligence with respect to the Business (it being understood that the only financial statements required to be provided pursuant to this Section 5.8(a) shall be those described in clause (iii) above), (vii) using reasonable best efforts to assist Purchaser in the preparation of the Definitive Agreements with respect to such Debt Financing, including ~~execution~~ credit agreements, intercreditor agreements and ~~delivery of customary representation letters in connection with an audit of the Business~~ pledge and ~~auditors comfort letter;~~ security documents, (~~iii~~viii) ~~as promptly as reasonably practical~~furnishing Purchaser and its financing sources promptly, and in any event no ~~event~~ later than ~~March 31, 2013, furnishing Buyer with (x) audited balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the~~ three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition Business Days prior to the ~~information required pursuant to clause (iii)~~Closing Date, ~~above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter~~ with ~~financial~~ all documentation and other information regarding the ~~Business~~ Purchased Entities and their Subsidiaries required by regulatory authorities or Financing Entities under applicable “beneficial ownership”, “know your customer” and anti-money laundering rules and regulations, in each case, to the ~~Assets as may be~~ extent that such documentation and information has been reasonably requested by ~~Buyer~~ Purchaser in writing, at least ten (~~including in connection~~ 10) calendar days prior to the Closing Date, (ix) using reasonable best efforts to assist with ~~Buyer’s~~ the preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offeringof, and ~~of type~~ execute and ~~form~~ deliver, customary closing certificates (not to be effective until the Closing Date) reasonably and customarily ~~included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities contemplated by the Financing, or as otherwise reasonably~~ required in connection with ~~the~~ such Debt Financing, (x) providing a customary certificate of the individual who is the chief financial officer or an officer serving the equivalent function of the Business with respect to solvency matters in the form set forth as ~~otherwise necessary~~ Annex 1 to Exhibit D to the Debt Commitment Letter as in ~~order~~ effect as of the date hereof and (xi) at or prior to ~~assist in receiving customary “comfort”~~ the Closing, causing the release of the Purchased Companies and their Subsidiaries from all guarantees and other obligations under the Seller Credit Agreement or any other Contract evidencing indebtedness for borrowed money (including ~~“negative assurance” comfort) from independent accountants in connection with the offering(s~~debt for borrowed money evidenced by bonds, debentures, notes or any other similar instruments) of Seller or any of its Subsidiaries (other than any Purchased Company or any of its Subsidiaries) and the release of all Liens on the Purchased Assets or the assets of the Purchased Companies created under the Seller Credit Agreement or any other Contract evidencing indebtedness for borrowed money (including debt for borrowed money evidenced by bonds, debentures, notes or ~~equity securities contemplated by~~ any other similar instruments) of Seller or any of its Subsidiaries (other than any Purchased Company or any of its Subsidiaries). The foregoing notwithstanding, neither Seller nor any of its Affiliates shall be required to take or permit the taking of any action pursuant to this Section 5.8 that would: (1) require Seller, its Affiliates (other than any Purchased Entities and their Subsidiaries) or any Persons who are officers or directors of Seller or any of its Affiliates (other than any Purchased Entities and their Subsidiaries) to pass resolutions or consents to approve or authorize the execution of the Financing or enter into, execute or deliver any certificate, opinion, document, instrument or agreement or agree to any change or modification of any existing certificate, opinion, document, instrument or agreement, (~~all such information~~ 2) other than customary authorization letters as described in clause (~~iii~~v) above, require any Purchased Entities or any of their Subsidiaries or any Persons who are officers or directors of the Purchased Entities and ~~this clause~~ their Subsidiaries to pass resolutions or consents to approve or authorize the execution of the Financing or enter into, execute or deliver any certificate, opinion, document, instrument or agreement or agree to any change or modification of any existing certificate, opinion, document, instrument or agreement, in each case that is not contingent on Closing or that is effective prior to the Closing Date (ivprovided that in no event will any officer or director of any Purchased Entities or any of their Subsidiaries be so required to take any such action if such Person is not going to continue to hold such offices and positions from and after Closing), ~~including the Carve-Out Financials, the “Required Information”);~~ (v3) ~~providing information relating to the Business that is reasonably available to it to assist~~ cause any representation or warranty in the preparation of any credit agreements, indentures, 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 Buyer; (vi) furnishing Buyer and their Financing sources as promptly as practicable all financial information required this Agreement to be ~~delivered pursuant to the Financing Letter and monthly financial statements for the Business~~ breached by Seller or any of its Affiliates, (~~to the extent prepared in the ordinary course of business); (vii~~4) assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Financing, as reasonably requested by Buyer; provided that (A) nothing herein shall require such cooperation to the extent it would require Seller or any of its Affiliates (other than any Purchased Entities and their Subsidiaries) to ~~waive~~ pay any commitment or ~~amend any terms of this Agreement,~~ other similar fee or incur any ~~Liabilities~~other expense, liability or obligation in connection with the Financing or require Seller or any of its Affiliates (other than any Purchased Entities and their Subsidiaries) to incur any obligation under any agreement, certificate, document or instrument, (5) require any Purchased Entities or any of their Subsidiaries to pay any ~~fees~~commitment or other similar fee or incur any expense, ~~reimburse any expenses,~~ liability or obligation in ~~each case,~~ connection with ~~respect to~~ the ~~Financing,~~ Financing prior to the Closing ~~for which it has not received~~ or have any obligation of any Purchased Entity or any Subsidiary of any Purchased Entity under any agreement, certificate, document or instrument be effective prior ~~reimbursement by~~ to the Closing, (6) cause any director, officer, employee or ~~on behalf~~ stockholder of ~~Buyer, or would cause~~ Seller or any of its Affiliates to incur any personal liability, (7) conflict with the organizational documents of Seller or any of its Affiliates or any Laws, (8) 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 contract to which Seller or any of its Affiliates is a party, (9) require Seller, any of its Affiliates or any of their Representatives to provide access to or disclose information that Seller or any of its Affiliates determines would jeopardize any attorney-client privilege or other applicable legal privilege of Seller or any of its Affiliates, provided that, in the event that the restrictions set forth in this ~~Agreement~~ clause (9) apply, Seller shall cooperate in good faith to attempt to design and implement alternative disclosure arrangements to enable Purchaser to evaluate any such information without jeopardizing the attorney-client or ~~become unable~~ other applicable legal privilege, (10) require Seller or any of its Affiliates or any of their Representatives to ~~satisfy a condition~~ prepare any pro forma financial statements or to provide any information or assistance relating to (aa) the proposed aggregate amount of the Financing, assumed interest rates, dividends (other than those declared or paid prior to the Closing) and fees and expenses relating to the incurrence of the Financing, (Bbb) ~~nothing herein shall require such cooperation from Seller~~ any post-Closing or ~~its Affiliates~~ pro 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 ~~extent it would~~ Debt Financing or (cc) any financial information related to Purchaser or (11) unreasonably interfere with the ongoing operations of Seller or any of its Affiliates. Nothing contained in this Section 5.8 or otherwise shall require Seller or any of its Affiliates, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing. Purchaser shall, promptly upon request by Seller, reimburse Seller for all reasonable out-of-pocket costs incurred by Seller or any of its Affiliates or their respective Representatives in connection with such cooperation and shall indemnify and hold harmless Seller and its Affiliates and ~~(C) there shall be no action, Liability~~ their respective Representatives from and against any and all losses suffered or ~~obligation of Seller or its Affiliates under any certificate, agreement, arrangement, document or instrument relating to the Financing. Notwithstanding anything to the contrary~~ incurred by them in ~~this Section 6.10, neither Seller nor its Affiliates shall be in breach of the covenant set forth in this Section 6.10 if it has acted in good faith to comply~~ connection with the cooperation and assistance set forth herein. (b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement of the Financing, any ~~other financing and/or~~ action taken by them at the ~~provision~~ request of Purchaser pursuant to this Section 5.8 and any information ~~utilized~~ used in connection therewith (other than information provided in writing by Seller or its Affiliates or their Representatives specifically in connection with its obligations pursuant to this Section 5.8). (b) For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 5.8 represent the sole obligation of Seller, its Affiliates and their respective Representatives with respect to cooperation in connection with the arrangement of any financing (including the Financing) to be obtained by Purchaser or any of its Affiliates with respect to the ~~fullest extent permitted~~ transactions contemplated by ~~applicable Legal Requirement~~this Agreement and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or modify such obligations. (c) All information regarding Seller ~~will use~~ or any of its ~~reasonable best efforts to update Required Information provided to Buyer~~ Affiliates obtained by Purchaser or its Representatives pursuant to ~~clauses~~ this Section 5.8 shall be kept confidential in accordance with this Agreement and the Confidentiality Agreement; provided that, notwithstanding anything to the contrary contained in this Agreement or the Confidentiality Agreement, Purchaser and its Representatives may disclose any information relating to the Business or the transactions contemplated by this Agreement to any Financing Parties (~~iii~~or prospective Financing Parties) ~~and (iv) of Section 6.10(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 made therein~~ratings agencies so long as, in the ~~light~~ case of any Financing Parties, such Financing Parties are subject to the confidentiality undertakings set forth in the Debt Commitment Letter as in effect on the date hereof or other customary confidentiality undertakings (not materially less favorable to Seller, Purchaser and each of their respective Affiliates than the confidentiality undertakings set forth in the Debt Commitment Letter as in effect as of the ~~circumstances under which they were made~~date hereof) with respect to dissemination of such information to such Persons with respect to debt financings of the type contemplated by the Debt Commitment Letter as in effect as of the date hereof or, in the case of any rating agency, such rating agency is subject to customary confidentiality undertakings with respect to dissemination of such information to such rating agency. Seller hereby consents to the use of its and its Subsidiaries’ logos in connection with the Financing; provided that such trademarks and logos are used solely in a manner that is not ~~misleading~~intended to or reasonably likely to harm or disparage Seller or any of its Subsidiaries or the reputation or goodwill of Seller or any of its Subsidiaries.

Appears in 1 contract

Sources: Purchase and Sale Agreement (Aecom)

Appears in 1 contract

Sources: Asset Purchase Agreement (Genon Americas Generation LLC)

Financing Cooperation. (a) For purposes of this Section 6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise. Prior to the Closing, Seller The Company shall, and shall ~~use reasonable best efforts to~~ cause ~~each of~~ its ~~Affiliates~~ Subsidiaries to, and shall cause its and their Representatives to, ~~use reasonable best efforts to~~ provide ~~to Buyer such~~ all cooperation reasonably requested by ~~Buyer and~~ Parent in connection with financing arrangements (including, without limitation, assumptions, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations or prepayments of existing financing arrangements) as Parent may reasonably ~~required~~ determine necessary or advisable in connection with the ~~Financing~~ completion of the Merger or the ~~Alternate Financing, including (to the extent reasonably requested and reasonably required):~~ other transactions contemplated hereby. Such cooperation shall include (i) participating in a ~~customary and~~ reasonable number of meetings, ~~presentations,~~ presentations and due diligence ~~sessions~~sessions in connection with such financing arrangements, ~~drafting sessions, road shows and sessions with rating agencies;~~ (ii) ~~assisting~~ providing reasonable and timely assistance with the preparation of materials for ~~rating agency~~ presentations, offering ~~documents, private placement memoranda, bank information~~ memoranda, prospectuses ~~(registered or otherwise)~~ and similar documents ~~for the Financing, including execution and delivery of customary representation letters~~ required in connection with ~~an audit~~ such financing arrangements (including relating to the preparation of ~~the Business and auditors comfort letter;~~ pro forma financial statements), (iii) as promptly as reasonably practical, and in no any event ~~later than March 31, 2013~~at least 20 days prior to the Closing Date, furnishing ~~Buyer~~ Parent and any of its financing sources with (xA) audited consolidated balance sheets ~~for the Business as at December 31, 2011~~ and ~~2012, and (y)~~ related audited consolidated statements of operations, comprehensive income (loss), changes in equity and cash flows for each of the ~~Business~~ three most recently completed fiscal years of the Company ended at least sixty (60) days prior to the Closing Date, in each case, prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year and (B) unaudited consolidated balance sheets and related condensed consolidated statements of operations, comprehensive income, changes in equity and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for the ~~three~~ Company for each subsequent fiscal quarter ended at least forty (340) ~~years ended December 31~~days prior to the Closing Date (other than the fourth fiscal quarter of any fiscal year), ~~2012~~ in each case, prepared in accordance with GAAP and reviewed by the Company’s independent public accountants, and (zC) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with financial and any other information regarding the ~~Business~~ Company and ~~the Assets as~~ its Subsidiaries that Parent may be reasonably requested by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities contemplated by the Financing, or as otherwise reasonably required request in connection with the arrangement or execution of the Financing, or as otherwise necessary in order to assist in receiving customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt or equity securities contemplated by the Financing (all such information in clause (iii) and this clause (iv)) obtain customary authorization letters, ~~including the Carve-Out Financials~~comfort letters and accountants’ consent letters as may be requested by Parent, ~~the “Required Information”);~~ and (v) ~~providing information relating~~ to the extent requested in writing at least ten (10) Business ~~that is reasonably available~~ Days prior to it the Closing, delivering at least three Business Days prior to ~~assist in~~ the ~~preparation of any credit agreements, indentures, purchase agreements, currency or interest hedging arrangements,~~ Closing all documentation and other ~~definitive financing documents, officer’s certificates, customary closing documents, or other certificates or documents~~ information with respect to the ~~Financing contemplated~~ Company and its Subsidiaries that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the ~~Financing as may be reasonably requested by Buyer; (vi) furnishing Buyer~~ USA PATRIOT Act. Notwithstanding the foregoing, the Company and its Subsidiaries and their ~~Financing sources as promptly as practicable all financial information~~ respective Representatives shall not be required to enter into any letter, certificate, document, agreement or instrument (other than customary authorization and representation letters) that will be ~~delivered pursuant~~ effective prior to the ~~Financing Letter~~ Closing and ~~monthly financial statements for the Business (to the extent prepared~~ nothing in ~~the ordinary course of business); (vii~~this Section 5.14(a) assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Financing, as reasonably requested by Buyer; provided that (A) nothing herein shall require (x) such cooperation to the extent it would ~~require Seller~~ disrupt unreasonably the business or operations of the Company or any of its ~~Affiliates~~ Subsidiaries or require any of them to ~~waive~~ take any actions that would reasonably be expected to violate applicable Law, contract or ~~amend~~ Organizational Documents, (y) the board of directors or similar governing body of the Company or any ~~terms~~ Subsidiary of ~~this Agreement~~the Company to adopt resolutions approving any letter, certificate, document, agreement or instrument (other than customary authorization and representation letters to the extent necessary) that will be effective prior to the Closing or (z) the Company or any of its Subsidiaries to incur any ~~Liabilities, pay any fees, reimburse any expenses, in each case, with respect to the Financing,~~ liability prior to the Closing for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of ~~Buyer~~Parent. It is understood and agreed that a failure to consummate a financing of the type described in the first sentence of this Section 5.14(a) shall not, ~~or would cause Seller or any~~ in and of ~~its Affiliates to breach this Agreement or become unable~~ itself, constitute a failure by the Company to satisfy ~~a condition to the Closing, (B) nothing herein shall require such cooperation from Seller or~~ its ~~Affiliates to the extent it would unreasonably interfere with the ongoing operations of Seller or its Affiliates and (C) there shall be no action, Liability or obligation of Seller or its Affiliates~~ obligations under ~~any certificate, agreement, arrangement, document or instrument relating to the Financing. Notwithstanding anything to the contrary in~~ this Section ~~6.10, neither Seller nor its Affiliates shall be in breach of the covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth herein~~5.14(a). (b) ~~Buyer~~ The Company shall, and shall ~~indemnify~~ cause its Subsidiaries to, use reasonable best efforts to, as soon as reasonably practicable after (and not prior to) the ~~Seller Indemnitees from~~receipt of a written request from Parent to do so, ~~against~~ on the terms and conditions specified by Parent and in compliance with all applicable terms and conditions of the applicable Company Debt Agreement, seek an amendment or amendments to any of the Company Debt Agreements or pursue any approach chosen by Parent to the assumption, defeasance, satisfaction and discharge, constructive satisfaction and discharge, refinancing, repayment, repurchase, redemption, termination, amendment, guarantee, purchase, unwinding or other treatment of, the Company Debt Agreements and the indebtedness incurred pursuant thereto, in each case, subject to the occurrence of the Closing (any such transaction, a “Debt Transaction”). The Company shall not be required to take any action in respect of any ~~Losses imposed on~~Debt Transaction until Parent shall have provided the Company with drafts of any necessary documentation required in connection with such Debt Transaction in a form reasonably satisfactory to the Company (collectively, ~~sustained~~the “Debt Transaction Documents”) at least three (3) Business Days prior to the date of such requested action. The Company shall use reasonable best efforts to, and shall cause its Subsidiaries to use reasonable best efforts to, cause its and their respective Representatives to provide cooperation and assistance reasonably requested by Parent in connection with the Debt Transactions (including taking all corporate action reasonably necessary to authorize the execution and delivery of any Debt Transaction Documents to be entered into prior to Closing and delivering all officer’s certificates and legal opinions required to be delivered in connection therewith); provided, that the effectiveness of any such Debt Transaction Documents or, in the case of a notice of prepayment or redemption, such prepayment or redemption, shall be expressly conditioned on the Closing. (c) All material non-public or otherwise confidential information regarding the Company obtained by Parent or any of their respective Representatives pursuant to Section 5.14(a) shall be kept confidential in accordance with the Confidentiality Agreement; provided that the Company agrees that Parent may share non-public or otherwise confidential information with the rating agencies and actual or potential financing sources if the recipients of such information agree to customary confidentiality arrangements, including customary “click through” confidentiality agreements and confidentiality provisions contained in customary bank books and offering memoranda. Parent shall indemnify, defend and hold harmless the Company and its Affiliates, and its and their respective pre-Closing trust managers, directors, officers, employees, agents, representatives and professional advisors, from and against any liability, obligation or loss suffered or incurred by them in connection with any cooperation provided under Section 5.14(a) and any information utilized in connection therewith, except in the event such liabilities, obligations or ~~suffered by~~losses arose out of or result from (A) information furnished in writing by or on behalf of the Company, its Subsidiaries or ~~asserted against~~its or their respective Affiliates or Representatives for use in connection with the debt financing, (B) the bad faith, gross negligence or willful misconduct by the Company, any of ~~them~~its Subsidiaries or any of its or their respective Affiliates or Representatives or (C) the material breach by the Company or its Subsidiaries of its or their obligations under this Agreement (clauses (A) through (C) collectively, ~~directly~~ the “Indemnity Exceptions”). Parent shall, promptly upon request by the Company, reimburse the Company and its Subsidiaries and Representatives for all reasonable, documented and invoiced out-of-pocket costs actually incurred by the Company or ~~indirectly relating to~~its Subsidiaries in connection with any cooperation provided under Section 5.14(a) (including reasonable and documented out-of-pocket auditor’s and attorneys’ fees and expenses, but excluding the costs of the Company’s preparation of its annual quarterly and financial statements and any other information or data and excluding costs arising out of or resulting from the ~~arrangement~~ Indemnity Exceptions). The Company shall, and shall cause its Subsidiaries to deliver all notices and take all other actions to facilitate the termination at the Effective Time of all commitments in respect of each of the ~~Financing,~~ Company Credit Facility and any other ~~financing and/or~~ indebtedness of the ~~provision~~ Company or its Subsidiaries to be paid off, discharged and terminated on the Closing Date as specifically requested by Parent in writing, the repayment in full on the Closing Date of ~~information utilized~~ all obligations in respect of the indebtedness thereunder, and the release on the Closing Date of any Liens securing such indebtedness and guarantees in connection ~~therewith to~~ therewith. In furtherance and not in limitation of the ~~fullest extent permitted by applicable Legal Requirement. (c) Seller will~~ foregoing, the Company and its Subsidiaries shall use ~~its~~ reasonable best efforts to ~~update Required Information provided~~ deliver to ~~Buyer pursuant~~ Parent (i) at least 10 Business Days prior to ~~clauses~~ the Closing Date (~~iii~~or such short period as agreed by Parent), a draft payoff letter with respect to each of the Company Credit Facility and (to the extent requested by the Parent to the Company in writing) any other indebtedness (including mortgages) of the Company or its Subsidiaries to be paid off, discharged and terminated on the Closing Date and (ii) at least one Business Day prior to the Closing Date, an executed payoff letter with respect to each of the Company Credit Facility (the “Payoff Letters”) and such other indebtedness (including mortgages) of the Company or its Subsidiaries to be paid off, discharged and terminated on the Closing Date, in each case in form and substance customary for transactions of this type, from the Persons (or the applicable agent on behalf of the Persons) to whom such indebtedness is owed, which Payoff Letters together with any related release documentation shall, among other things, (x) include the payoff amount (including customary per diem) and (ivy) provide that Liens (and guarantees), if any, granted in connection with the Company Credit Facility or any such other indebtedness of ~~Section 6.10(a) as may~~ the Company to be ~~necessary~~ paid off, discharged and terminated on the Closing Date relating to the assets, rights and properties of the Company and its Subsidiaries securing or relating to such ~~that~~ indebtedness, shall, upon the ~~Required Information does not contain any untrue statement~~ payment of ~~material fact or omit to state any material fact necessary in order to make~~ the ~~statements made therein,~~ amount set forth in the ~~light of~~ applicable Payoff Letter at or prior to the ~~circumstances under which they were made~~Effective Time, ~~not misleading~~be released and terminated.

Appears in 1 contract

Sources: Merger Agreement (Kimco Realty Corp)

Financing Cooperation. (ai) ~~For purposes of this Section 6.10~~The Company agrees to, ~~the term “Financing”~~ and shall ~~include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise. Prior to the Closing, Seller shall~~cause its Subsidiaries to, and shall use its reasonable best efforts to cause ~~each of~~ its ~~Affiliates~~ and ~~Representatives~~ their representatives to, ~~use reasonable best efforts to~~ provide to ~~Buyer~~ Parent and Merger Sub, at Parent’s sole expense, such cooperation reasonably requested by ~~Buyer and reasonably required~~ Parent in connection with the arrangement of the Financing or (which for purposes of this Section 7.14 shall be deemed to include the ~~Alternate~~ Alternative Financing), ~~including~~ including, without limitation, (to A) participation by officers and employees of the ~~extent reasonably requested and reasonably required): (i) participating~~ Company in a ~~customary and~~ reasonable number of meetings, presentations, ~~due diligence sessions~~road shows, drafting sessions, ~~road shows~~ due diligence sessions and sessions with ~~rating~~ prospective lenders, investors and ratings agencies; , (iiB) ~~assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses~~ (~~registered or otherwise~~1) furnishing Parent and ~~similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii)~~ its Financing Sources as promptly as ~~reasonably practical, and in no event later than March 31, 2013, furnishing Buyer~~ practicable with (x) audited consolidated balance sheets as of October 2, 2009 and October 1, 2010 and related audited statements of income, stockholders’ equity and comprehensive income and cash flows of the Company and its Subsidiaries, for each of the ~~Business as at~~ years in the three-year period ended October 1, 2010, no later than December 3115, ~~2011 and 2012,~~ 2010 and (y) ~~audited~~ unaudited consolidated balance sheets and related statements of ~~income~~ income, stockholders’ equity and cash flows ~~for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days~~ of the ~~end of the relevant fiscal quarter~~Company and its Subsidiaries, ~~unaudited interim financial statements~~ for each fiscal quarter ~~ending~~ ended after ~~January 1~~the date hereof but at least forty (40) days before the Closing Date, ~~2013~~ and comparable prior year periods, no later than such unaudited financial information is required to be filed by the Company under the Exchange Act (~~collectively, the “Carve-Out Financials”); (iv) in addition~~ without giving effect to ~~the information required pursuant to clause (iii~~any extension period), ~~above, as promptly as reasonably practical,~~ and (2) furnishing Buyer and the other parties to the Financing Letter with financial and other information regarding the Business and the Assets as may be reasonably requested by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim all financial statements, business and other financial data~~, projections~~, audit reports and other information regarding the Company and its Subsidiaries of the type and for the time periods that would be required by Regulation S-X and Regulation S-K of promulgated under the Securities Act ~~of 1933~~ for a registered public ~~offering~~offering of debt securities of the Company (provided that Parent shall be responsible for the preparation, with the assistance of the Company and its independent accountants, of pro forma financial statements), to the extent the same is of the type and form customarily included in an offering memorandum, private placement memorandum, and similar documents for private placements of high-yield bonds under Rule ~~144A~~144A promulgated under the Securities Act, including audits thereof to ~~consummate~~ the ~~offering(s)~~ extent so required (which audits shall be unqualified, except to the extent set forth in Section 1.1 of ~~debt or equity securities contemplated by~~ the ~~Financing~~Company Disclosure Letter), or ~~as otherwise reasonably required in connection with the Financing, or as~~ otherwise necessary ~~in order~~ to ~~assist in receiving~~ receive from the Company’s independent accountants customary “comfort” (including “negative assurance” comfort) ~~from independent accountants~~ with respect to the financial information to be included in ~~connection with the offering(s) of debt or equity securities contemplated by the Financing~~ such offering memorandum (all such information in ~~clause (iii) and~~ this clause (ivB), ~~including the Carve-Out Financials~~collectively, the “Required Information”); , (vC) ~~providing information relating to~~ assisting Parent and Merger Sub and the ~~Business that is reasonably available to it to assist~~ Financing Sources in the preparation of any ~~credit agreements, indentures, purchase agreements, currency or interest hedging arrangements, other definitive financing~~ offering documents, ~~officer’s certificates~~lender and investor presentations, rating agency presentations, marketing materials, private placement memoranda, bank information memoranda (including the delivery of customary ~~closing documents, or other certificates or~~ representation and authorization letters) and similar documents ~~with respect to~~ for the Financing ~~contemplated by~~ (all such documents and materials, the ~~Financing~~ “Offering Documents”), (D) assisting in negotiation of definitive documents as may be reasonably requested by ~~Buyer;~~ Parent, (viE) ~~furnishing Buyer~~ entering into such definitive financing documents and such other customary documents as may be reasonably requested by Parent, including officers certificates and a certificate of the chief financial officer of the Company with respect to solvency matters and including requesting customary legal opinions from outside counsel; provided that no obligation of the Company or any Subsidiaries of the Company under any agreement, document or pledge shall be operative until the Effective Time, (F) facilitating the pledging of collateral (including entering into mortgages and leasehold mortgages and all other documentation reasonably required for any real property related financing, if reasonably requested) and removal of Liens, provided that no pledge or removal of Liens shall be operative until the Effective Time, (G) cooperating to permit the prospective lenders involved in the Financing to evaluate and assess the assets of the Company and its Subsidiaries for the purpose of establishing collateral arrangements to the extent customary and reasonable, (H) obtaining assistance and cooperation of its accountants, including participating in a reasonable number of drafting and accounting due diligence sessions and providing consents for the use of their ~~Financing sources as promptly as practicable all financial information required to be delivered pursuant~~ reports in materials related to the Financing ~~Letter~~ or Alternative Financing and ~~monthly financial statements for the Business~~ comfort letters, and providing such accountants with any documentation requested by them in connection therewith, (~~to the extent prepared in the ordinary course of business); (vii~~I) ~~assisting Buyer~~ using reasonable best efforts to obtain ~~waivers~~surveys, consents, ~~estoppels and approvals from other parties to Contracts~~approvals, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reportsauthorizations, environmental assessments and ~~other inspections,~~ title insurance (including by providing such affidavits and ~~other documentation and items relating to the Financing,~~ non-imputation endorsements in connection therewith) as reasonably requested by ~~Buyer~~Parent, (J) adopting all customary Company Board resolutions and consents, subject to the occurrence of the Closing, necessary to permit the consummation of the Debt Financing, (K) obtaining customary payoff letters, Lien terminations and customary instruments of discharge and termination in full of all indebtedness and Liens, as reasonably requested, (L) using reasonable best efforts to assist Parent in obtaining corporate and facilities ratings for the Debt Financing, and (M) furnishing Parent and the Financing Sources promptly, and in any event at least five (5) days prior to the Closing Date, with all documentation and other information required by Governmental Entities with respect to the Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act. The Company hereby consents to the use 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 harm or disparage the Company or their marks; (ii) Notwithstanding anything to the contrary contained in this Agreement (including this Section 7.14(c)), (A) nothing ~~herein~~ in this Agreement (including this Section 7.14(c)) shall require any such cooperation to the extent that it would (1) require ~~Seller~~ the Company or any of its ~~Affiliates~~ Subsidiaries or representatives, as applicable, to waive or amend any terms of this ~~Agreement, incur any Liabilities,~~ Agreement or agree to pay any ~~fees~~commitment, consent or other fees or reimburse any ~~expenses, in each case, with respect to the Financing,~~ expenses prior to the ~~Closing for which it has not received prior reimbursement by or on behalf of Buyer~~Effective Time, or ~~would cause Seller~~ incur any liability or obligation or give any ~~of its Affiliates to breach this Agreement or become unable to satisfy a condition to~~ indemnities that is not contingent upon the ~~Closing~~Effective Time, (B2) ~~nothing herein shall require such cooperation from Seller or its Affiliates to the extent it would~~ unreasonably interfere with the ongoing business or operations of ~~Seller~~ the Company and its Subsidiaries, (3) require the Company or any of its ~~Affiliates and~~ Subsidiaries to take any action that will conflict with or violate the Company’s organizational documents or any Laws or the Contracts governing the existing Indebtedness of the Company or result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or default under, any Contract to which the Company or any of its Subsidiaries is a party, or (C4) ~~there shall be no action, Liability~~ result in any officer or ~~obligation~~ director of ~~Seller~~ the Company or any of its ~~Affiliates under~~ Subsidiaries incurring any ~~certificate, agreement, arrangement, document or instrument~~ personal liability with respect to any matters relating to the Financing~~. Notwithstanding anything~~ , and (B) any bank information memoranda and high-yield offering memoranda required in relation to the ~~contrary in this~~ Debt Financing, other than representation letters and authorization letters as required by Section ~~6.10~~7.14(c)(i)(C), ~~neither Seller nor~~ need not be issued by the Company or any of its ~~Affiliates~~ Subsidiaries and shall ~~be in breach of~~ contain disclosure and pro forma financial statements reflecting the ~~covenant set forth in this Section 6.10 if it has acted in good faith to comply with~~ Surviving Corporation and/or its Subsidiaries as the ~~cooperation and assistance set forth herein.~~obligor; (biii) ~~Buyer~~ Subject to the limitations in Section 7.14(c)(ii), the Company shall, and shall ~~indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating~~ cause its Subsidiaries to, arising out of or resulting from the arrangement of the Financing, any other financing and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement. (c) Seller will use its and their reasonable best efforts to ~~update Required Information provided to Buyer~~ cause its and their representatives to, at the sole expense of Parent, provide all cooperation reasonably requested by Parent in connection with any payment, purchase (pursuant to ~~clauses~~ tender offer or otherwise), redemption, defeasance, satisfaction and/or discharge of any outstanding Indebtedness of the Company or any Subsidiary in connection with the transactions contemplated hereby, including, without limitation, (~~iii~~x) the prepayment or discharge of any obligations owed by the Company and any Affiliate pursuant to the Company Existing Credit Facility and any related loan document (ivsubject to and conditioned upon the Closing), or (y) ~~of Section 6.10(a~~commencing, as soon as reasonably practicable following a request from Parent to do so, offers to purchase, and any related consent solicitations with respect to, any outstanding Indebtedness evidenced by indentures (“Note Indebtedness”) ~~as may~~ on the terms and conditions reasonably specified by Parent but to be ~~necessary such~~ conditioned upon the Closing, which terms and conditions (other than the condition that the ~~Required Information does~~ Closing is consummated) shall be amended or waived as directed by Parent (collectively, the “Debt Offers”); not making any changes to the terms of the Debt Offers, or waiving any of the conditions thereto, without the prior written consent of Parent; preparing appropriate documentation (including offers to purchase and consent solicitation statements, related letters of transmittal, and other related documents) relating to any Debt Offers, with the assistance of Parent, and amending or supplementing any such documentation if the Company, any of its Subsidiaries or Parent shall determine that such amendment or supplement is required so that such documentation 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 ~~made~~ therein, in ~~the~~ light of the circumstances under which they were made, not ~~misleading~~misleading (and notifying Parent of any event or condition giving rise to such determination); providing Parent and its legal counsel a reasonable opportunity to review and have their respective comments incorporated into any documentation related to any Debt Offer; entering into appropriate supplemental indentures with respect to the amendments to the indentures contemplated by the Debt Offers and providing such other documentation, including opinions and certificates, as may be required in connection therewith (provided that no such supplemental indenture shall become operative until all conditions to the applicable Debt Offer have been satisfied or waived); engaging one or more dealer managers, information agents, depositaries and other agents, as selected by Parent and reasonably acceptable to the Company, and entering into customary documentation in connection therewith (including a customary dealer manager agreement); and complying with the requirements of Rule 14e-1 under the Exchange Act and any other applicable Law in connection with any Debt Offer; or, at the option of Parent, in lieu of any of the Debt Offers, effecting a redemption, covenant defeasance or a satisfaction and/or discharge of any Note Indebtedness pursuant to the terms of the applicable indenture (subject to and conditioned upon the Closing); provided, that Parent or the Surviving Corporation shall fund any such purchase pursuant to any Debt Offer or any redemption, defeasance or satisfaction and/or discharge. (iv) Parent shall, promptly upon request from the Company, reimburse the Company for all reasonable and documented out-of-pocket expenses and costs, including fees of outside accountants and outside legal counsel, to the extent incurred in connection with the Company’s or its Subsidiaries’ cooperation under this Section 7.14. Parent and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company, the Company Related Parties and their respective Affiliates and its and their respective representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the Financing, any actions taken pursuant to this Section 7.14, and any information utilized in connection therewith, except with respect to any losses, damages, claims, costs or expenses to the extent resulting from or by reason of information provided by or at the direction of the Company, the Company Related Parties or any of their respective Affiliates or to the extent that such 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 Related Parties or their respective Affiliates.

Appears in 1 contract

Sources: Merger Agreement (Cpi International, Inc.)

Financing Cooperation. (a) ~~For purposes of this Section 6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise.~~ Prior to the ~~Closing~~Effective Time, ~~Seller shall~~the Company shall use its reasonable best efforts, and shall cause the Company Subsidiaries to use their reasonable best efforts, and shall use its reasonable best efforts, to cause its and their respective Representatives to, provide all customary cooperation and all customary financial information, in each case that is reasonably requested by Parent in connection with any financing, including the Debt Financing, obtained or to be obtained by Parent for the purpose of financing the Transactions or any transaction undertaken in connection therewith (it being understood that the receipt of any such financing is not a condition to the Merger), including by using reasonable best efforts to: (i) furnish, or cause to be furnished, to Parent (x) audited consolidated balance sheets and related consolidated statements of operations and comprehensive income (loss), consolidated statements of shareholders’ equity and consolidated statements of cash flows for the Company for each of the three (3) most recently completed fiscal years of the Company ended at least sixty (60) days prior to the Closing Date prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year (which Parent hereby acknowledges receiving for the three (3) fiscal years ended March 27, 2021, April 2, 2022 and April 1, 2023) and (y) unaudited consolidated balance sheets and related consolidated statements of operations and comprehensive income (loss), consolidated statements of shareholders’ equity and consolidated statements of cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for each subsequent fiscal quarter ended on a date that is at least forty (40) days before the Closing Date; (ii) cause the Company’s and the Company Subsidiaries’ independent accountants, as reasonably requested by Parent, to (a) consent to the use of their audit reports on the financial statements of the Company and the Company Subsidiaries in any materials relating to, or any filings made with the SEC related to, such financing, (b) provide, consistent with customary practice, “comfort letters,” including customary “negative assurances” (including drafts thereof which such accountants are prepared to issue at the time of pricing and at closing of any offering or placement of the Debt Financing) necessary and reasonably requested by Parent in connection with any debt capital markets transaction comprising a part of such financing, and (c) participate in reasonable and customary due diligence sessions, which sessions shall be telephonic or held by videoconference and held at reasonable and mutually agreeable times; (iii) assist Parent in (including by providing information relating to the Company and the Company Subsidiaries reasonably required and requested by Parent in connection with) its preparation of rating agency presentations, road show materials, bank information memoranda, projections, prospectuses, bank syndication materials, credit agreements, offering memoranda, private placement memoranda, definitive financing documents (as well as customary certificates and “backup” support) and similar or related documents to be prepared by Parent in connection with such financings, and which may incorporate by reference periodic and current reports filed by the Company with the SEC, including any historical financial information of the Company and the Company Subsidiaries required for the preparation by Parent of customary pro forma financial information and pro forma financial statements to the extent required by Regulation S-X under the Securities Act or any other accounting rules and regulations of the SEC, and/or in connection with such financing (it being agreed that the Company need only assist in the preparation thereof but shall not be required to (x) prepare independently any pro forma financial statements or (y) provide any information or assistance relating to (A) the proposed aggregate amount of debt financing, together with assumed interest rates, dividends (if any) and fees and expenses relating to the incurrence of such debt, (B) any post-Closing or pro forma cost savings, synergies, capitalization or ownership desired to be incorporated into any information used in connection with such financing or (C) any financial information related to Parent or any Parent Subsidiaries); (iv) cooperate with customary marketing efforts of Parent for such financing, including using reasonable best efforts to cause ~~each of~~ its ~~Affiliates~~ management team, with appropriate seniority and ~~Representatives to~~expertise, ~~use reasonable best efforts~~ to ~~provide~~ assist in preparation for and to Buyer such cooperation reasonably requested by Buyer and reasonably required in connection with the Financing or the Alternate Financing, including (to the extent reasonably requested and reasonably required): (i) participating participate in a ~~customary and~~ reasonable number of meetings, presentations, road shows, due diligence sessions (including accounting due diligence sessions), drafting sessions, and sessions with rating agencies, in each case, upon reasonable notice and at mutually agreeable dates and times, which sessions meetings, presentations, road shows and sessions with rating agencies; (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered shall be telephonic or otherwise) and similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii) as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer with (x) audited balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with financial and other information regarding the Business and the Assets as may be reasonably requested held by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities 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 “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt or equity securities contemplated by the Financing (all such information in clause (iii) and this clause (iv), including the Carve-Out Financials, the “Required Information”)video conference; (v) ~~providing information relating~~ deliver to Parent, no later than four (4) Business Days prior to the ~~Business that is reasonably available~~ Closing Date, any materials and documentation about the Company and the Company Subsidiaries required under applicable “know your customer” and anti-money laundering Laws (including the Uniting and Strengthening America by Providing Appropriate Tools Required to ~~it to assist in the preparation~~ Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of ~~any credit agreements~~2001), indentures, 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~~ extent requested by ~~Buyer~~Parent no less than nine (9) Business Days prior to the Closing Date; (vi) ~~furnishing Buyer and their Financing sources~~ inform Parent promptly in writing if the Company (A) concludes that any previously issued financial statement of the Company or any of Subsidiaries included in any materials with respect to such financing should no longer be relied upon as ~~promptly as practicable all financial information required to be delivered pursuant to~~ per Item 4.02 of Form 8-K under the ~~Financing Letter and monthly~~ Exchange Act or (B) shall have determined a restatement of any of the Company’s or the Company Subsidiaries’ financial statements ~~for the Business (to the extent prepared in the ordinary course of business)~~is required or reasonably likely; (vii) ~~assisting Buyer~~ cooperate with respect to ~~obtain waivers~~the provision of guarantees required by such financing, ~~consents~~including by executing and delivering definitive documents related thereto, ~~estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which~~ it being understood that the ~~Assets or~~ effectiveness of any such guarantees shall be conditioned upon the ~~Business are bound~~occurrence of the Closing; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating provide customary authorization letters to the ~~Financing~~Financing Parties authorizing the distribution of information to prospective lenders or investors and containing a representation that the public side versions of such documents, ~~as reasonably requested by Buyer;~~ if any, do not include material non-public information about the Company or the Company Subsidiaries (only to the extent such authorization letters contain customary disclaimers for the Company, its affiliates and their respective Representatives with respect to responsibility for the use or misuse of the contents thereof), provided that the Company is afforded adequate time to review such authorization letters and related materials; provided, however, that (Aa) ~~nothing herein shall require~~ no such cooperation shall be required under this Section 6.13 or Section 6.14(b) to the extent it would (i) unreasonably disrupt the conduct of the Company’s business, (ii) require ~~Seller~~ the Company or the Company Subsidiaries to incur any fees, expenses or other liability prior to the Effective Time for which it is not promptly reimbursed or simultaneously indemnified, (iii) be reasonably expected to cause any director, officer or employee of the Company or any ~~of its Affiliates~~ Company Subsidiary to incur any personal liability, (iv) require the Company to waive or amend any terms of this Agreement, ~~incur~~ (v) require the Company or any ~~Liabilities~~Company Subsidiary to provide any information that is prohibited or restricted by applicable Law or is legally privileged (provided, ~~pay any fees~~however, ~~reimburse any expenses,~~ that the Company shall use its reasonable best efforts to make appropriate substitute arrangements to permit reasonable disclosure not in ~~each case, with respect~~ violation of Law or to allow for such access or disclosure to the ~~Financing~~maximum extent that does not result in a loss of such legal privilege), (vi) require the Company or any Company Subsidiary or any persons who are officers or directors of such entities to pass resolutions or consents to approve or authorize the execution of such financing or enter into, execute or deliver any certificate, document, instrument or agreement (other than the authorization letters referred to in Section 6.13(a)(viii) above, customary representation letters required in connection with the provision of any “comfort letters” in accordance with Section 6.13(a)(i) above and any supplemental indenture related to a consent solicitation pursuant to Section 6.14(b) in which the changes do not become effective until Closing) or agree to any change or modification of any existing certificate, document, instrument or agreement, (vii) cause any representation or warranty in this Agreement to be breached by the Company or any of the Company Subsidiaries, (viii) conflict with the organizational documents of the Company or any Company Subsidiary or any Laws, (ix) 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 the Company or any of the Company Subsidiaries is a party, (x) require the delivery of any opinion of counsel, or (xi) require the Company or any Company Subsidiary to prepare any financial statements or information that cannot be produced or provided without unreasonable cost or expense and are not prepared in the ordinary course of its financial reporting practice. Nothing contained in this Section 6.13 or otherwise shall require the Company or any Company Subsidiary, prior to the ~~Closing~~ Effective Time, to be an issuer or other obligor with respect to such financing. Parent shall, promptly upon request by the Company, reimburse the Company or any Company Subsidiary for ~~which it has not received prior reimbursement~~ all reasonable and documented out-of-pocket costs incurred by them or ~~on behalf~~ their respective representatives in connection with such cooperation and shall reimburse, indemnify and hold harmless the Company and Company Subsidiaries and their respective representatives from and against any and all losses actually suffered or incurred by them in connection with the arrangement of ~~Buyer~~such financing, any action taken by them at the request of Parent or ~~would cause Seller~~ its representatives pursuant to this Section 6.13 and Section 6.14 and any information used in connection therewith, except to the extent resulting from the gross negligence, fraud or willful misconduct of the Company or any Company Subsidiary or any of its ~~Affiliates~~ their respective representatives, arising from incorrect or misleading information provided by the Company or any Company Subsidiary or any of its their respective representatives. (b) The Company hereby consents to ~~breach this Agreement~~ use of all of its and the Company Subsidiaries’ logos in connection with any financing (subject to the Company having a reasonable opportunity for advance review of and consultation with respect to such use); provided that such logos are used solely in a manner that is reasonable and customary for such purposes and solely in a manner that is not intended to, nor reasonably likely to, harm or ~~become unable to satisfy~~ disparage the Company or the Company Subsidiaries or the Company’s or the Company Subsidiaries’ reputation or goodwill. (c) 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 ~~the Closing, (B) nothing herein shall require such cooperation from Seller or its Affiliates to the extent it would unreasonably interfere with the ongoing operations~~ any of ~~Seller or its Affiliates and (C) there shall be no action, Liability or obligation of Seller or its Affiliates~~ Parent’s obligations under ~~any certificate, agreement, arrangement, document or instrument relating to the Financing~~this Agreement. Notwithstanding anything to the contrary in this ~~Section 6.10~~Agreement, ~~neither Seller nor its Affiliates shall be in~~ the Company’s breach of any of the ~~covenant~~ covenants required to be performed by it under this Section 6.13 shall not be considered in determining the satisfaction of the condition set forth in ~~this~~ Section ~~6.10 if it has acted in good faith~~ 7.2(b), unless such breach is the primary cause of Parent being unable to ~~comply with~~ obtain the ~~cooperation and assistance set forth herein~~proceeds of any financing at the Closing. (bd) ~~Buyer shall indemnify~~ All non-public or otherwise confidential information regarding the ~~Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred~~ Company or ~~suffered by, or asserted against,~~ any of ~~them~~the Company Subsidiaries obtained by Parent, ~~directly~~ the Parent Subsidiaries or ~~indirectly relating to~~any of their respective Representatives pursuant to this Section 6.13 shall be kept confidential in accordance with the Confidentiality Agreement; provided that such information may be disclosed (i) on a confidential basis to prospective lenders, ~~arising out of~~ underwriters, initial purchasers, placement agents, dealer managers, solicitation agents, information agents and depositary or ~~resulting from the arrangement~~ other agents during syndication and marketing of the ~~Financing, any other~~ financing ~~and/or~~ subject to such entities entering into confidentiality obligations with Parent on terms similar to those in the provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement. (c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii) Confidentiality Agreement and (ivii) ~~of Section 6.10(a) as may be necessary such that the Required Information does not contain any untrue statement of material fact or omit~~ on a confidential basis to ~~state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading~~rating agencies.

Appears in 1 contract

Sources: Agreement and Plan of Merger (Capri Holdings LTD)

Financing Cooperation. (a) For purposes of this Section 6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise. Prior to the Closing, Seller The Company shall, ~~and~~ shall cause its Subsidiaries to, shall use its reasonable best efforts to ~~cause each of~~ cause, and shall instruct, its ~~Affiliates~~ and their respective Representatives to, ~~use~~ and shall authorize and permit its or their Representatives to, cooperate with Parent and its Subsidiaries and its and their Representatives in connection with the arrangement, marketing or consummation of any Financing (and, with respect to clauses (i), (ii), (iii) and (iv) below, in connection with the preparation of financial and other information necessary or customary for Holdco to comply with its reporting and disclosure obligations), as and when reasonably requested by Parent (so long as such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), including: (i) furnishing Parent and its Financing Sources and their respective Representatives with the following information regarding the Company and its Subsidiaries (it being understood and agreed that such material shall be deemed furnished if it is filed by the Company with the SEC and available on the SEC’s ▇▇▇▇▇ website): (1) audited consolidated financial statements (including balance sheets, statements of income and cash flows, a statement of shareholders equity and related notes) for each fiscal year of the Company ended after the date hereof and prior to the Closing Date no later than the filing deadline under the 1934 Act for the Company to file with the SEC its Annual Report on Form 10-K with respect to such fiscal year (collectively with such information from the fiscal years ended December 31, 2013, 2014 and 2015, the “Audited Financial Statements”); (2) unaudited consolidated financial statements for any interim quarterly period ending after the date hereof following the most recent fiscal year for which Audited Financial Statements have been provided pursuant to clause (1) above or otherwise filed with the SEC (including a comparison to the corresponding interim quarterly period in the prior year), prepared in accordance with GAAP and reviewed (as per “SAS 100”) no later than the filing deadline under the 1934 Act for the Company to file with the SEC its Quarterly Report on Form 10-Q with respect to such interim period (the “Unaudited Financial Statements”); (3) to the extent reasonably requested by Parent sufficiently in advance to allow reasonable time for the preparation of such information, using reasonable best efforts to provide an unaudited reconciliation to ~~Buyer such cooperation~~ International Financial Reporting Standards as adopted by the European Union (“IFRS”) of certain material financial information reasonably requested by ~~Buyer~~ Parent and contained in the Audited Financial Statements and the Unaudited Financial Statements reasonably promptly after the date by which such financial statements are required to be delivered hereunder (or, in the case of the Audited Financial Statements for the fiscal years ending on December 31, 2013, 2014 and 2015, reasonably promptly following the date hereof), in each case, to the extent required in the pro forma financial statements covered by clause (iii) below (provided, however, there shall be no obligation for the Audited Financial Statements to be audited under any standard other than “U.S. GAAS”); (4) using reasonable best efforts to prepare and provide such information (including estimates of revenue, earnings and other financial measures) as would be reasonably required ~~in connection with~~ for Parent to prepare any financial projections or forecasts or estimates of revenues, earnings or other financial metrics regarding the ~~Financing or the Alternate Financing~~Company and its Subsidiaries for any period, ~~including (~~to the extent reasonably requested by Parent sufficiently in advance to allow reasonable time for the preparation of such information; (5) items delivered pursuant to clause (1) above shall be delivered together with a report (which report shall be unqualified except for qualifications that are customary) of an independent registered public accounting firm stating that such firm has audited, such financial statements in accordance with, applicable requirements of the SEC; (ii) to the extent reasonably requested by Parent sufficiently in advance to allow reasonable time to prepare, discussing with Parent and ~~reasonably required):~~ its Representatives during normal business hours the preparation of the financial statements and other materials described in clause (i) ~~participating~~ above and the scope and conduct of the audit or review, as applicable, and consulting with Parent and its Representatives; (iii) to the extent reasonably requested by Parent sufficiently in advance to allow reasonable time for preparation of such information, using reasonable best efforts to provide such financial information regarding the Company and its Subsidiaries to allow Holdco to prepare pro forma financial statements of Holdco (solely with respect to information regarding the Company and its Subsidiaries) for the most recently completed full fiscal year of Holdco and the most recently completed interim periods, in each case, for which financial statements have been delivered pursuant to clauses (i)(1) and (i)(2) above, reasonably required by the Financing Sources or Applicable Law to be included in any offering or marketing documents related to the Financing or customarily included in such offering or marketing documents, prepared in accordance with IFRS; (iv) using reasonable best efforts to furnish Parent with such other financial and other customary information regarding the Company and its Subsidiaries as may be reasonably requested by Parent sufficiently in advance as to allow a reasonable time for preparation of such information (provided, however, there shall be no obligation for the Audited Financial Statements to be audited under any standard other than “U.S. GAAS” or for the Company to prepare any reconciliation of the Audited Financial Statements to IFRS other than as contemplated by Section 6.05(a)(i)(3)); (v) making the Company’s senior officers available and requesting the Company’s independent accountants and other advisors to participate in a ~~customary and~~ reasonable number (which with respect to senior officers of the Company shall consist of no more than ten meetings presentations, road shows or other sessions) of meetings (including investor and lender meetings), presentations, road shows, due diligence sessions, drafting ~~sessions, road shows~~ sessions and sessions with rating ~~agencies~~agencies in connection with the Financing, in each case, during normal business hours and to the extent requested by Parent reasonably in advance; (iivi) ~~assisting with~~ to the extent reasonably requested by Parent sufficiently in advance so as to allow reasonable time for preparation of such information, using reasonable best efforts to provide any other reasonably required information to Parent for the preparation by Holdco of ~~materials for rating agency presentations,~~ customary offering documents, prospectuses, private placement memoranda, bank information memoranda, ~~prospectuses (registered or otherwise)~~ confirmations and undertakings, rating agency presentations and lender and investor presentations and similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii) as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer with (x) audited balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with financial and other information regarding the Business and the Assets as may be reasonably requested by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily ~~included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities contemplated by the Financing, or as otherwise reasonably required~~ used in connection with the Financing, in each case, to the extent relating to information (financial or ~~as otherwise necessary~~ otherwise) regarding the Company and its Subsidiaries of the type customarily included in ~~order~~ such materials (any such document, a “Financing Document”) and executing customary authorization letters to ~~assist~~ the extent relating to information (financial or otherwise) regarding the Company and its Subsidiaries of the type customarily included in ~~receiving customary “comfort”~~ such Financing Documents; provided, however, that nothing herein shall require the Company or its Subsidiaries to (1) register or qualify (including ~~“negative assurance” comfort~~registering or qualifying the sale of any securities) ~~from independent accountants~~ in a jurisdiction where such entities are not already so registered or qualified or (2) disclose information publicly prior to any time that the Company and its Subsidiaries would otherwise be required to do so pursuant to the rules and regulations of the SEC unless Parent reasonably believes it is required by Applicable Law to publicly disclose such information in connection with its Financing and the ~~offering(s)~~ Company shall so make such public disclosure promptly following reasonable advance notice to the Company by and in consultation with Parent; provided, further, there shall be no obligation for the Audited Financial Statements to be audited under any standard other than “U.S. GAAS” or for the Company to prepare any reconciliation of ~~debt or equity securities~~ the Audited Financial Statements to IFRS other than as contemplated by the Financing (all such information in clause (iii) and this clause (iv), including the Carve-Out Financials, the “Required Information”); (v) providing information relating to the Business that is reasonably available to it to assist in the preparation of any credit agreements, indentures, 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 Buyer; (vi) furnishing Buyer and their Financing sources as promptly as practicable all financial information required to be delivered pursuant to the Financing Letter and monthly financial statements for the Business (to the extent prepared in the ordinary course of businessSection 6.05(a)(i)(3); (vii) ~~assisting Buyer~~ at least five Business Days prior to the Closing Date, furnishing Parent with documents or other information reasonably requested in writing sufficiently in advance as to allow reasonable time for the preparation of such information (and in all events at least fifteen Business Days before the Closing Date) by the parties acting as lead arrangers or agents for, or lenders under, or underwriters or initial purchasers with respect to, any Financing under applicable “know your customer” and anti-money laundering rules and regulations; (viii) to the extent reasonably requested by Parent sufficiently in advance so as to allow reasonable time for preparation, using reasonable best efforts to obtain ~~waivers, consents, estoppels~~ the Company’s independent accountants’ customary comfort letters and ~~approvals from other parties to Contracts, material Leases~~ consents (including “negative assurance comfort”) for Holdco’s use of the financial statements of the Company and ~~Easements, and Encumbrances to which the Assets or the Business are bound~~its Subsidiaries in any Financing Document (including providing any necessary management representation letters); and (~~viii~~ix) ~~cooperating with Buyer in its~~ using reasonable best efforts to ~~obtain accountants’ comfort Letter~~deliver, ~~consents~~no later than the Closing Date, ~~legal opinions~~customary payoff letters and, ~~surveys~~if not covered by the payoff letter, ~~appraisals~~instruments of discharge to be delivered at the Closing to allow for the payoff, ~~engineering reports~~discharge and termination in full (and, environmental and other inspections, title insurance and other documentation and items relating to the Financing, as reasonably requested by Buyer; provided that (A) nothing herein shall require such cooperation to the extent ~~it would require Seller~~ there are any letters of credit issued for the account of the Company or any of its ~~Affiliates~~ Subsidiaries, cash collateralization or issuance of a “back to ~~waive or amend any terms~~ back” letter of ~~this Agreement, incur any Liabilities, pay any fees, reimburse any expenses,~~ credit in ~~each case~~respect thereof, with ~~respect~~ such cash collateralization or “back to ~~the Financing, prior~~ back” letter of credit to ~~the Closing for which it has not received prior reimbursement~~ be provided by or on behalf of ~~Buyer~~Parent) on the Closing Date of all amounts payable under and any and all Liens securing and/or guarantees in respect of: (1) (x) unless the Revolver Amendment has been executed and delivered prior to such date, ~~or would cause Seller or any~~ and Parent notifies the Company that it has elected not to terminate the Existing Revolving Credit Facility, that certain Senior Secured Revolving Facilities Credit Agreement, as amended and restated as of ~~its Affiliates to breach this Agreement or become unable to satisfy a condition~~ December 4, 2013 (as amended, the “Existing Revolving Credit Facility”), and (y) that certain Senior Secured Term Facility Credit Agreement, dated as of August 27, 2010, as amended by Amendment No. 1 to the ~~Closing~~Senior Secured Term Facility Credit Agreement, dated as of September 27, 2010, by Amendment No. 2 to the Senior Secured Term Facility Credit Agreement, dated as of October 30, 2013, and by Amendment No. 3 to the Senior Secured Term Facility Credit Agreement, dated as of July 25, 2016 (Bas amended, the “Existing Term Credit Facility”) (2) ~~nothing herein shall require such cooperation from Seller or its Affiliates~~ to the extent ~~it would unreasonably interfere~~ requested by Parent sufficiently prior to the Closing Date so as to allow reasonable time to prepare, each of the Existing China Facilities; (3) to the extent requested by Parent sufficiently prior to the Closing Date so as to allow reasonable time to prepare, that certain Promissory Note, dated March 28, 2013, made by the Company in favor of Hewlett-Packard Financial Services Company, for the original principal sum of $7,490,467.00 (“HP Note”); and (4) to the extent requested by Parent sufficiently prior to the Closing Date so as to allow reasonable time to prepare, any other funded indebtedness of the Company and its Subsidiaries for borrowed money that is repayable by its terms upon consummation of the Merger or immediately following the Effective Time or otherwise as a result of the Merger. The Company shall effect the payoff, discharge and termination of all obligations of the Company and its Subsidiaries in connection with the ~~ongoing operations of Seller~~ Existing Revolving Credit Facility (unless the Revolver Amendment has been executed and delivered prior to the Closing Date), the Existing Term Credit Facility and, to the extent requested by Parent, the HP Note and any other indebtedness referred to in clause (ix)(4) above (it being understood that the Company shall have no obligation to pay or ~~its Affiliates~~ discharge any such indebtedness prior to the Effective Time, and ~~(C) there~~ the funding required for such payoff, discharge and termination shall be ~~no action~~the responsibility of Parent). To the extent requested by Parent, ~~Liability or obligation of Seller or its Affiliates under any certificate, agreement, arrangement, document or instrument relating~~ the Company shall use reasonable best efforts to take such actions prior to the ~~Financing. Notwithstanding anything~~ Closing to facilitate Parent’s or the Company’s payoff, discharge and termination of the Existing China Facilities at or after the Closing (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the ~~contrary in this Section 6.10~~Effective Time, ~~neither Seller nor its Affiliates~~ and the funding required for such payoff, discharge and termination shall be ~~in breach~~ the responsibility of ~~the covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth herein~~Parent). (b) ~~Buyer~~ If requested in writing by Parent, the Company shall, and shall ~~indemnify~~ cause its Subsidiaries to, (1) issue one or more notices of optional redemption for any or all of the ~~Seller Indemnitees from, against and in respect~~ outstanding aggregate principal amount of any ~~Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement~~ of the ~~Financing~~Existing Notes (together with all accrued and unpaid interest and applicable premiums or consent payments related to the Existing Notes) pursuant to the Indenture, dated as of June 10, 2013, among the Company, the Subsidiaries of the Company party thereto as guarantors (the “Guarantors”) and ▇▇▇▇▇ Fargo Bank, National Association, as the trustee (in such capacity, the “Trustee”), as amended and restated by the First Supplemental Indenture, dated as of July 23, 2013, among the Company, the Guarantors and the Trustee (as amended and restated, the “Existing Indenture”) in order to effect a redemption no earlier than the Closing Date of the Existing Notes, pursuant to the terms of the Existing Indenture (the “Redemption”) and (2) provide any other ~~financing and/or~~ cooperation reasonably requested by Parent (which shall not require any payment by the ~~provision~~ Company or its Subsidiaries) to facilitate the redemption of ~~information utilized~~ the Existing Notes no earlier than the Closing Date (but in ~~connection therewith~~ all events no earlier than the Effective Time). The Company shall provide Parent with a reasonable opportunity to review and comment on each of the ~~fullest extent permitted~~ notices and other documents contemplated by ~~applicable Legal Requirement~~this Section 6.05(b) reasonably in advance of their delivery and, after consultation with Parent with respect to any such comments, shall accept such comments that are not unreasonable. Any such Redemption pursuant to this Section 6.05(b) shall be conditioned on the Closing having occurred (or occurring concurrently) and shall be conducted in accordance with the Existing Indenture and Applicable Law. (c) ~~Seller will~~ If requested in writing by Parent, (i) the Company shall use its reasonable best efforts to ~~update Required Information provided to Buyer pursuant to clauses (iii) and (iv) of Section 6.10(a)~~ take such further actions 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~~ satisfy and discharge the ~~statements made therein~~Existing Notes no earlier than the Closing Date (but in all events no earlier than the Effective Time) (the “Satisfaction and Discharge”), (ii) the Company shall deliver an officer’s certificate of the Company and use its reasonable best efforts to deliver an opinion of the Company’s counsel, in each case, in accordance with the ~~light~~ Existing Indenture, to effect the Satisfaction and Discharge and (iii) the Company shall use its reasonable best efforts to provide any other cooperation reasonably requested by Parent (which shall not require any payment by the Company or its Subsidiaries but may include sending notices related to such Satisfaction and Discharge to the Trustee and holders of Notes) to facilitate the Satisfaction and Discharge. Upon completion of the ~~circumstances under~~ Satisfaction and Discharge (which ~~they were made~~for the avoidance of doubt, will take place no earlier than the Closing Date), the Company shall use its reasonable best efforts to cause the Trustee to promptly deliver to the Company and Parent an acknowledgement that the Satisfaction and Discharge has been completed. The Company shall provide Parent with a reasonable opportunity to review and comment on each of the notices and other documents contemplated by this Section 6.05(c) reasonably in advance of delivery and, after consultation with Parent with respect to any such comments, shall accept such comments that are not ~~misleading.~~unreasonable. Any

Appears in 1 contract

Sources: Merger Agreement (Chemtura CORP)

Financing Cooperation. (a) ~~For purposes of this Section 6.10~~Parent expressly acknowledges and agrees that neither the availability, the ~~term “Financing” shall include any Permanent Financing (as defined in~~ terms nor the obtaining of the Financing ~~Letter), whether for debt, equity~~ or ~~otherwise. Prior~~ any other financing is in any manner a condition to the ~~Closing~~Merger, ~~Seller~~ the Closing or the obligations of Parent to consummate the transactions contemplated hereby, and reaffirms its obligation to consummate the Merger, the Closing and the transactions contemplated hereby, irrespective and independently of the availability of the Financing or any other financing. (b) The Company shall, and shall cause the Company Subsidiaries to, use its and their reasonable best efforts to, and shall use its reasonable best efforts to cause ~~each of~~ its ~~Affiliates~~ and their respective Representatives to, ~~use reasonable best efforts to~~ provide ~~to Buyer such~~ customary cooperation and customary financial information, in each case that is reasonably requested by ~~Buyer and reasonably required~~ Parent upon reasonable prior written notice in connection with any financing obtained or to be obtained by Parent for the ~~Financing~~ purpose of financing the Merger or any transaction undertaken in connection therewith (the ~~Alternate~~ “Financing”), including ~~(to the extent reasonably requested and reasonably required):~~ by (i) ~~participating in a customary and reasonable number of meetings~~furnishing, ~~presentations~~or causing to be furnished, ~~due diligence sessions, drafting sessions, road shows and sessions with rating agencies;~~ to Parent (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered or otherwise) and similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii) as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer with (xA) audited consolidated balance sheets ~~for the Business as at December 31, 2011~~ and ~~2012, and (y) audited~~ related consolidated statements of ~~income~~ operations, comprehensive loss, stockholders’ equity and cash flows for the ~~Business~~ Company for each of the three ~~(3)~~ most recently completed fiscal years of the Company ended ~~December 31~~at least 60 days prior to the Closing Date, ~~2012~~ prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year, and (zB) ~~within forty~~unaudited condensed consolidated balance sheets and related condensed consolidated statements of operations, comprehensive loss, stockholders’ equity and cash flows (in each case, subject to normal year-~~five~~ end adjustments and absence of footnotes) for each subsequent fiscal quarter ended on a date that is at least 40 days prior to the Closing Date; provided that the financial statements required to be delivered pursuant to this clause (45i) ~~days~~ shall be deemed to have been delivered on the date on which such items have been publicly filed with, and made available on the website of, the SEC or made publicly available on the website of any national securities exchange, and (ii) using reasonable best efforts to cause the Company’s and the Company Subsidiaries’ independent accountants, as reasonably requested by P▇▇▇▇▇, to (A) consent to the use of their audit reports on the financial statements of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer Company and the ~~other parties~~ Company Subsidiaries in any materials relating to the Financing ~~Letter with financial and other information regarding the Business and the Assets as may be reasonably requested by Buyer (including~~ or in connection with ~~Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of~~ any filings made with the ~~type required by Regulation S-X and Regulation S-K of~~ SEC or pursuant to the Securities Act ~~of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt~~ or ~~equity securities contemplated by the Financing, or as otherwise reasonably required~~ Exchange Act in connection with the Financing, ~~or as otherwise necessary in order to assist in receiving~~ (B) provide any customary “~~comfort~~comfort letters” (including ~~“negative assurance” comfort~~drafts thereof that such accountants are prepared to issue at the time of pricing and at closing of any offering or placement of the Financing) ~~from independent accountants~~ necessary and reasonably requested in writing by Parent in connection with ~~the offering(s)~~ any debt capital markets transaction comprising a part of debt or equity securities contemplated by the Financing (all such information in clause (iii) and this clause (iv), including the Carve-Out Financials, the “Required Information”); (v) providing information relating to the Business that is reasonably available to it to assist in the preparation of any credit agreements, indentures, 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 Buyer; (vi) furnishing Buyer and their Financing sources as promptly as practicable all financial information required to be delivered pursuant to the Financing Letter and monthly financial statements for the Business (to the extent prepared in the ordinary course of business); (vii) assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Financing, ~~as reasonably requested by Buyer~~and (C) participate in a reasonable number of customary due diligence sessions; ~~provided~~ provided, however, that (A1) ~~nothing herein shall require~~ no such cooperation shall be required to the extent it would (I) unreasonably interfere with the conduct of the Company’s or any Company Subsidiary’s business, (II) require ~~Seller~~ the Company or any of ~~its Affiliates~~ the Company Subsidiaries to ~~waive~~ incur any fees, expenses or other liability or to 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, (III) be reasonably expected to cause any Representative of the Company or any Company Subsidiary to incur any personal liability, (IV) require the Company or any Company Subsidiary to waive, breach or amend any terms of this Agreement, or agree to any change or modification of any other existing agreement or other documentation in connection therewith that would be effective prior to the Effective Time, (V) require the Company, any Company Subsidiary or any of their respective Representatives to provide any information that is prohibited or restricted by applicable Law or is legally privileged (provided, however, that the Company shall use its reasonable best efforts to make appropriate substitute arrangements to permit reasonable disclosure not in violation of Law or to allow for such access or disclosure to the maximum extent that does not result in a loss or waiver of such legal privilege), (VI) require the Company, any Company Subsidiary 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 any Company Subsidiary, any applicable Laws, or any Contracts of the Company or any Company Subsidiary, or (VII) require the Company, any Company Subsidiary or any of their respective Representatives to produce any financial information regarding the Company and the Company Subsidiaries that is not readily available or within the Company’s possession or to prepare or produce any projections or pro forma financial statements and (2) the Company, the Company Subsidiaries and their respective Representatives shall not be required to execute any credit or security documentation or any other definitive agreement (other than customary authorization and representation letters in connection with the Financing), adopt any resolution or otherwise take any corporate or similar action or incur any ~~Liabilities, pay~~ obligation or liability in connection with the Financing or to approve or authorize the Financing (including the documentation or instruments pursuant to which the Financing is obtained) or provide any ~~fees, reimburse any expenses~~indemnity, in each ~~case, with respect to the Financing~~case of this clause (2), prior to the ~~Closing for which it has~~ Effective Time, and shall not ~~received prior reimbursement~~ be required to deliver or cause to be delivered any opinion of counsel or solvency certificate in connection with such cooperation. 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 manner that is reasonable and customary and not intended or reasonably likely to harm, disparage or otherwise adversely affect the Company or any of the Company Subsidiaries or the reputation or goodwill of the Company or any of the Company Subsidiaries. (c) Parent shall indemnify and hold harmless the Company, the Company Subsidiaries, and their respective Representatives from and against any claims, damages, injuries, judgments, awards, penalties, fines, costs, settlement payments, expenses, liabilities or losses suffered or incurred by them based on, arising out of, relating to or in connection with, in whole or in part, the Financing or their cooperation therewith and any information utilized in connection therewith, except in the event such claims, damages, injuries, judgments, awards, penalties, fines, costs, settlement payments, expenses, liabilities or losses arise out of or result from (i) the willful misconduct, gross negligence or bad faith of the Company and the Company Subsidiaries or any of their respective Representatives, (ii) the material breach by the Company of its obligations under this Agreement or (iii) any intentional misstatement or omission in information provided in writing hereunder by or on behalf of ~~Buyer~~the Company, ~~or would cause Seller~~ the Company Subsidiaries or any of its Affiliates to breach this Agreement or become unable to satisfy a condition to the Closing, (B) nothing herein shall require such cooperation from Seller or its Affiliates to the extent it would unreasonably interfere their respective Representatives for use in connection with the ~~ongoing operations~~ Financing (clauses (i) through (iii), collectively, the “Indemnity Exceptions”). Parent shall, promptly upon request by the Company, reimburse the Company and the Company Subsidiaries for all reasonable and documented out-of-pocket costs actually incurred by the Company and the Company Subsidiaries (including those of ~~Seller~~ their respective Representatives and reasonable and documented attorneys’ fees) in connection with taking action required or ~~its Affiliates and (C) there shall be no action, Liability or obligation of Seller or its Affiliates under any certificate, agreement, arrangement, document or instrument relating~~ requested by Parent pursuant to ~~the Financing. Notwithstanding anything to the contrary in~~ this Section ~~6.10~~7.8, neither Seller nor its Affiliates shall be in breach of the covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth herein. (b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, other than those arising out of or resulting from the ~~arrangement of the Financing, any other financing and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement~~Indemnity Exceptions. (c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii) and (iv) of Section 6.10(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 made therein, in the light of the circumstances under which they were made, not misleading.

Appears in 1 contract

Sources: Merger Agreement (Abbott Laboratories)

Financing Cooperation. (a) For purposes of this Section 6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise. Prior to the Closing, Seller The Company shall, and shall ~~use reasonable best efforts to~~ cause ~~each of~~ its ~~Affiliates~~ Subsidiaries to, and shall cause its and their Representatives to, use reasonable best efforts to provide ~~to Buyer such~~ all cooperation reasonably requested by ~~Buyer and~~ Parent, or as Parent may reasonably ~~required~~ determine necessary or advisable, in connection with financing arrangements (including, without limitation, assisting in the ~~Financing~~ arrangement of new financing arrangements (including the Financing) and any assumptions, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, redemptions, terminations or prepayments of existing financing arrangements of Parent or the ~~Alternate Financing~~Company or their respective subsidiaries) to fund the cash portion of the Merger Consideration, ~~including~~ the completion of the Merger or the other transactions contemplated hereby or to be consummated in connection therewith and the payment of related fees and expenses. Such cooperation shall include, without limitation, (~~to the extent reasonably requested~~ A) furnishing Parent and ~~reasonably required):~~ any of its Financing Sources with (i) ~~participating~~ unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows for the Company for the fiscal quarter ended June 30, 2017 and each subsequent fiscal quarter (other than the fourth fiscal quarter in any fiscal year) ended after the close of its most recent fiscal year and at least forty (40) days prior to the Closing Date (with respect to which independent auditors have performed a ~~customary~~ SAS 100 review) and ~~reasonable number of meetings, presentations, due diligence sessions, drafting sessions, road shows and sessions with rating agencies;~~ (ii) ~~assisting~~ in the event that the Closing Date occurs on a date that is more than sixty (60) days following December 31, 2017, audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows for the fiscal year ended December 31, 2017, in each case prepared in accordance with GAAP and (B) using reasonable best efforts to (i) cause management teams of the Company or its Subsidiaries, with appropriate seniority and expertise, upon reasonable notice, to participate in, and provide reasonable and timely assistance with the preparation of materials ~~for~~ for, meetings, due diligence and drafting sessions, rating agency ~~presentations~~presentations and road shows, ~~offering documents~~if any, ~~private placement memoranda, bank~~ related to such financing arrangements; (ii) provide information ~~memoranda, prospectuses (registered~~ with respect to the Company and its Subsidiaries reasonably requested by Parent or ~~otherwise) and similar documents for the Financing~~any of its Financing Sources to facilitate such financing arrangements, including ~~execution and delivery of customary representation letters~~ reasonably assisting Parent in connection with ~~an audit~~ the preparation of ~~the Business~~ pro forma financial information and ~~auditors comfort letter;~~ financial statements to be included in any Offering Document; (iii) as promptly as ~~reasonably practical~~practical upon the reasonable request of Parent, furnish Parent and ~~in no event later than March 31, 2013, furnishing Buyer~~ any of its Financing Sources with (x) audited balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with such financial and other information ~~regarding the Business and the Assets as may be~~ reasonably requested by ~~Buyer (including in connection with Buyer’s~~ Parent relating to the Company or its Subsidiaries that is customary or reasonably required for the preparation of ~~pro forma financial statements)~~the Offering Documents; (iv) assist in the preparation of SEC filings to be made by Parent, ~~including unaudited interim financial statements~~offering memoranda, ~~financial data~~private placement memoranda, ~~projections~~prospectuses, ~~audit reports~~ bank confidential information memoranda, syndication materials, rating agency presentations and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities contemplated by the Financing, or as otherwise reasonably similar documents required in connection with such financing arrangements (“Offering Documents”); (v) (x) cause Ernst & Young LLP or other relevant accountants of the ~~Financing~~Company and its Subsidiaries to provide assistance and cooperation to Parent, including using reasonable best efforts to (1) cause their participation in drafting sessions and accounting due diligence sessions and assistance in the preparation of any pro forma financial statements referred to in clause (B)(ii) above, (2) cause them to provide customary consents to use their audit reports on the consolidated financial statements of the Company as required in any Offering Documents or ~~as otherwise necessary~~ in ~~order~~ connection with any filings made with the SEC or pursuant to ~~assist in receiving~~ applicable law, and (3) cause them to provide any customary ~~“comfort”~~ comfort letters (including “negative assurance” comfort) ~~from independent accountants~~ in connection with any such financing arrangements and (y) cooperate with Parent’s legal counsel in connection with any legal opinions that such counsel may be required to deliver in connection with such financing arrangements; (vi) cooperate with any due diligence, to the ~~offering(s~~extent customary and reasonable; (vii) in connection with any such financing arrangements, provide customary authorization letters authorizing the distribution of ~~debt or equity securities contemplated~~ information provided by the ~~Financing (all~~ Company to prospective lenders, subject to customary confidentiality undertakings by such prospective lenders with respect thereto, and containing customary representations that such information does not contain a material misstatement or omission and that the “public side” versions of any Offering Documents only include information about the Company that is public information or information that is not material to the Company or its Subsidiaries or its or their securities; (viii) furnish promptly, and in ~~clause~~ any event at least four (~~iii~~4) Business Days prior to the Closing Date (to the extent requested within nine (9) Business Days prior to the Closing Date), all documentation and ~~this clause (iv)~~other information required by any Governmental Authority or as reasonably requested by any Financing Source under applicable “know your customer,” anti-bribery and anti-money laundering rules and regulations, including the ~~Carve-Out Financials~~PATRIOT Act, the ~~“Required Information”);~~ 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; (vix) ~~providing information relating to the Business that is reasonably available to it to assist~~ in ~~the preparation of any credit agreements, indentures, purchase agreements, currency or interest hedging~~ connection with such financing arrangements, ~~other~~ execute and deliver any definitive financing documents, ~~officer’s certificates, customary closing~~ including any necessary pledge and security documents, or other certificates or documents with respect to the Financing contemplated by the Financing as may be reasonably requested by Buyer; (vi) furnishing Buyer and their Financing sources as promptly as practicable all financial information required to be delivered pursuant to the Financing Letter and monthly financial statements for the Business (to the extent prepared in the ordinary course of business); (vii) assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Financing, as reasonably requested by ~~Buyer~~Parent and otherwise facilitating the pledging of collateral in connection with such financing arrangements, including taking reasonable actions necessary to permit the applicable Financing Sources to evaluate the Company’s and its Subsidiaries’ assets, inventory, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements (including establishing bank and other accounts and blocked account and control agreements in connection with the foregoing); ~~provided that~~ and (Ax) ~~nothing herein shall require~~ cause the taking of any corporate, limited liability company or partnership actions, as applicable, by the Company or its Subsidiaries reasonably necessary to permit the completion of such ~~cooperation~~ financing arrangements, subject to the ~~extent it would require Seller~~ occurrence of the Closing. (b) The Company shall, and shall cause its Subsidiaries to, as soon as reasonably practicable after (and not prior to) the receipt of a written request from Parent to do so, on the terms and conditions specified by Parent and in compliance with all applicable terms and conditions of the applicable Company Debt Agreement, use reasonable best efforts to seek an amendment or amendments to any of ~~its Affiliates~~ the Company Debt Agreements or pursue any approach chosen by Parent to ~~waive~~ the assumption, defeasance, satisfaction and discharge, constructive satisfaction and discharge, refinancing, repayment, repurchase, redemption, termination, amendment, guarantee, purchase, tender, exchange or ~~amend any terms of this Agreement~~other treatment of, ~~incur any Liabilities, pay any fees, reimburse any expenses~~the Company Debt Agreements and the indebtedness incurred pursuant thereto, in each case, ~~with respect~~ subject to the ~~Financing~~occurrence of the Closing (any such transaction, a “Debt Transaction”). The Company shall not be required to take any action in respect of any Debt Transaction until Parent shall have provided the Company with drafts of the necessary legal documentation required in connection with such Debt Transaction (collectively, the “Debt Transaction Documents”), and the Company and its legal counsel shall have had a reasonable opportunity to review and comment on the Debt Transaction Documents. The Company shall, and shall cause its Subsidiaries to, cause its and their respective Representatives to use reasonable best efforts to provide cooperation and assistance reasonably requested by Parent in connection with the Debt Transactions (including taking all corporate action reasonably necessary to authorize the execution and delivery of any Debt Transaction Documents to be entered into prior to Closing and delivering all officer’s certificates and legal opinions required to be delivered in connection therewith (such corporate action, execution and delivery not to be unreasonably withheld, delayed or conditioned)); provided that any such Debt Transaction Documents that amend any Company Debt Agreement prior to the Closing ~~for which it has~~ Date shall provide that such amendments are not ~~received~~ operative until the Closing. (c) The Company shall, and shall cause its Subsidiaries to, after (and not prior ~~reimbursement~~ to) the receipt of a written request from Parent to do so, use reasonable best efforts to deliver all notices and take all other actions to facilitate the termination at the Closing of all commitments in respect of each of the Company Credit Agreement, the Rice Midstream Holdco Credit Agreement and the Rice MLP Credit Agreement, the repayment in full on the Closing Date of all obligations in respect of the indebtedness thereunder, the release on the Closing Date of any Encumbrances securing such indebtedness and guarantees in connection therewith, and, with respect to any letters of credit outstanding thereunder, the cash collateralization thereof or the making of any alternate arrangements with respect thereto that are reasonably requested by Parent. In furtherance and not in limitation of the foregoing, after (and not prior to) the receipt of a written request from Parent to do so, the Company and its Subsidiaries shall use reasonable best efforts to deliver to Parent (i) at least five (5) Business Days prior to the Closing Date, a draft payoff letter with respect to each of the Company Credit Agreement, the Rice Midstream Holdco Credit Agreement and the Rice MLP Credit Agreement and any other indebtedness of the Company or its Subsidiaries to be paid off, discharged and terminated on the Closing Date and (ii) at least three (3) Business Days prior to the Closing Date, an executed payoff letter with respect to each of Company Credit Agreement, the Rice Midstream Holdco Credit Agreement and the Rice MLP Credit Agreement (the “Payoff Letters”), in each case in customary form and substance from the applicable agent on behalf of ~~Buyer~~the Persons to whom such indebtedness is owed, ~~or would cause Seller~~ which Payoff Letters together with any related release documentation shall, among other things, include the payoff amount and provide that Encumbrances (and guarantees), if any, granted in connection with the Company Credit Facilities or any other indebtedness of ~~its Affiliates to breach this Agreement or become unable to satisfy a condition to~~ the ~~Closing, (B) nothing herein shall require such cooperation from Seller~~ Company or its ~~Affiliates~~ Subsidiaries to be paid off, discharged and terminated on the extent it would unreasonably interfere with the ongoing operations of Seller or its Affiliates and (C) there shall be no action, Liability or obligation of Seller or its Affiliates under any certificate, agreement, arrangement, document or instrument Closing Date relating to the ~~Financing~~assets, rights and properties of the Company and its Subsidiaries securing or relating to such indebtedness, shall, upon the payment of the amount set forth in the applicable Payoff Letter at or prior to the Effective Time, be released and terminated. To the extent Parent has requested the termination of the commitments under the Company Credit Agreement, the Rice Midstream Holdco Credit Agreement or the Rice MLP Credit Agreement, Parent shall deposit, or cause to be deposited, funds with the applicable administrative agent no later than the Closing Date in an amount sufficient for such repayment. (d) The Company shall, and shall cause its Subsidiaries to, after (and not prior to) the receipt of a written request from Parent to do so, use reasonable best efforts to (i) issue one or more notices of optional redemption (and any updates thereto), which notices may be subject to one or more conditions specified by Parent, for all of the outstanding aggregate principal amount of each series of Company Notes pursuant to the applicable Company Notes Indenture in order to effect a redemption of the Company Notes on or after the Closing Date, and (ii) provide any other reasonable cooperation requested by Parent to facilitate the redemption of the Company Notes (and, if elected by Parent, the satisfaction and discharge of the Company Notes and the Company Notes Indentures substantially concurrently with the Closing) and the release of all guarantees in connection therewith, effective as of and conditioned upon the occurrence of the Closing Date (including delivering any legal opinions, notices, requests, order or certificates required to be delivered in connection with the Discharge). Parent shall deposit, or cause to be deposited, funds with the trustee for the applicable series of Company Notes sufficient to fund any Discharge requested by Parent no later than the redemption time specified in the applicable redemption notice in accordance with the applicable Company Notes Indentures. The redemption (or, if applicable, satisfaction and discharge) of the Company Notes and Company Notes Indentures pursuant to this Section 6.21(d) and the release of all guarantees in connection therewith, are referred to collectively as the “Discharge.” (e) Notwithstanding anything to the contrary in this Section ~~6.10~~6.21, ~~neither Seller nor its Affiliates~~ no action shall be required of the Company or its Subsidiaries pursuant to Section 6.21(a)-(d), if any such action shall: (i) unreasonably disrupt or interfere with the business or ongoing operations of Company and its Subsidiaries; (ii) cause any representation or warranty or covenant contained in ~~breach~~ this Agreement to be breached (unless waived by Parent); (iii) involve the entry by the Company or any Subsidiary into any agreement with respect to any financing arrangement that is operative prior to the Closing (it being understood and agreed that such agreements may be effective and binding against the Company and its Subsidiaries prior to the Closing); (iv) require Company or any of its Subsidiaries or any of its or their Representatives to provide (or to have provided on its behalf) any certificates or legal opinions, other than certificates or legal opinions delivered at (or effective as of) the Closing Date, customary representation and authorization letters and, any officer’s certificate required to be delivered pursuant to the Company Notes Indenture in connection with any Discharge pursuant to Section 6.21(d); (v) require the Company or any Subsidiary to pay any commitment or other fee prior to the Closing Date for which it has not received prior reimbursement; (vi) require the Company or any of its Subsidiaries or their respective Representatives to prepare pro forma financial information or projections, which shall be the responsibility of Parent (without waiver of the covenant set forth in ~~this~~ Section ~~6.10 if it has acted~~ 6.21(a)(B)(ii)); or (vii) cause any director, officer, or employee of Company or any of its Subsidiaries to execute any agreement or certificate in ~~good faith to comply with the cooperation and assistance set forth herein~~his or her individual, rather than official, capacity. (bf) ~~Buyer~~ 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 assisting in any financing arrangement pursuant to this Section 6.21 shall be paid or reimbursed by Parent, and, in the event the Closing shall not occur, Parent shall indemnify and hold harmless Company, its Subsidiaries and its and their Representatives from and against any and all losses actually suffered or incurred by them in connection with the ~~Seller Indemnitees from~~arrangement or consummation of such financing arrangement, ~~against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising~~ except to the extent such losses arise out of or ~~resulting~~ results from the ~~arrangement~~ fraud, intentional misrepresentation, intentional breach, gross negligence, bad faith or willful misconduct of the ~~Financing~~Company, its Subsidiaries or any ~~other financing and/or~~ of its or their Representatives related to this Section 6.21, or from the ~~provision of~~ information ~~utilized~~ provided by the Company or its Subsidiaries for use in the Offering Documents or otherwise in connection ~~therewith to the fullest extent permitted by applicable Legal Requirement~~with such financing arrangement. (c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii) and (iv) of Section 6.10(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 made therein, in the light of the circumstances under which they were made, not misleading.

Appears in 1 contract

Sources: Merger Agreement (EQT Corp)

Financing Cooperation. ~~(a) For purposes of this Section 6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise.~~ Prior to the ~~Closing~~Effective Time (or the earlier termination of this Agreement), ~~Seller~~ the Company shall, and shall cause the Company Subsidiaries to, and shall use commercially reasonable ~~best~~ efforts to cause ~~each of~~ its ~~Affiliates~~ and their Representatives to, ~~use reasonable best efforts to~~ provide ~~to Buyer such~~ customary cooperation that is reasonably requested by ~~Buyer and reasonably required in connection with the Financing~~ Parent or the Alternate Financing, including (to the extent reasonably requested and reasonably required): (i) participating in a customary and reasonable number of meetings, presentations, due diligence sessions, drafting sessions, road shows and sessions with rating agencies; (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered or otherwise) and similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii) as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer with (x) audited balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with financial and other information regarding the Business and the Assets as may be reasonably requested by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities contemplated by the Financing, or as otherwise reasonably required Merger Sub in connection with the Financing, including: (i) furnishing to Parent (A) audited consolidated balance sheets and related consolidated statements of operations, comprehensive (loss) income, changes in shareholders’ equity and cash flows for the Company for each of the three (3) most recently completed fiscal years of the Company ended at least sixty (60) days prior to the Closing Date prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year (it being agreed that publishing of such financial statements on the Company’s website or ~~as otherwise necessary in order to assist in receiving customary “comfort”~~ with the SEC (including ~~“negative assurance” comfort~~via E▇▇▇▇) ~~from independent accountants in connection with the offering(s) of debt or equity securities contemplated by the Financing (all such information in clause (iii) and~~ shall satisfy this clause (ivA)) and (B) unaudited condensed consolidated balance sheets and related condensed consolidated statements of operations, comprehensive (loss) income, changes in shareholders equity and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for each fiscal quarter of the Company ended after February 1, 2025 and at least forty (40) days prior to the Closing Date (it being agreed that publishing of such financial statements on the Company’s website or with the SEC (including ~~the Carve-Out Financials~~via E▇▇▇▇) shall satisfy this clause (B)) (together, the “Required ~~Information~~Financial Statements”); (vii) ~~providing~~ at reasonable times and locations (it being understood that any such meeting may take place via videoconference or web conference if mutually agreed among Parent and the Company), and upon reasonable advance notice, participating (and causing senior management and appropriate Representatives of the Company to participate) in a reasonable number of meetings, calls, presentations, road shows, lender presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies and otherwise cooperating with Parent’s marketing efforts for any of the Financing and assisting 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; (iii) assisting with the timely preparation and negotiation of materials (including, for the avoidance of doubt, customary rating agency presentations) and definitive documents customarily entered into in connection with debt financing similar to any Financing sought by Parent (such definitive documents, the “Financing Documents”); provided that such cooperation shall only be required to the extent that Parent has furnished to the Company a draft copy of any such Financing Document in order to provide the Company a reasonable opportunity to review; (iv) using commercially reasonable efforts to cause its independent auditors to (A) provide drafts and executed versions of customary auditors consents and customary comfort letters with respect to financial information relating to the ~~Business that is~~ Company and its Subsidiaries as reasonably ~~available~~ requested by Parent or as necessary, customary or desirable for financings similar to ~~it to assist~~ the Financing, (B) provide assistance in the preparation of pro forma financial statements and information (provided that Parent shall be responsible for the preparation of any pro forma financial statements and pro forma financial information), (C) attend a reasonable number of accounting due diligence sessions and drafting sessions at reasonable times and places, and (D) otherwise provide customary assistance; (v) using commercially reasonable efforts to (A) take actions reasonably 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) cooperate with Financing providers in performing due diligence and (C) assist in obtaining credit agreements, indentures, purchase agreements, currency or interest hedging arrangements, other definitive financing documents, officer’s certificates, customary closing documents, or other certificates or documents ratings; and (vi) in the event that the Company is in possession of material nonpublic information with respect to the ~~Financing contemplated by~~ Company or the ~~Financing as may be~~ Company Subsidiaries, if Parent reasonably ~~requested by Buyer; (vi) furnishing Buyer and their Financing sources as promptly as practicable all financial information required to be delivered~~ requests, filing a Current Report on Form 8-K pursuant to the Financing Letter and monthly financial statements for the Business (to the extent prepared in the ordinary course of business); (vii) assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, Exchange Act that contains such material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Financing, as reasonably requested by Buyer; provided that (A) nothing herein shall require such cooperation to the extent it would require Seller or any of its Affiliates to waive or amend any terms of this Agreement, incur any Liabilities, pay any fees, reimburse any expenses, in each case, nonpublic information with respect to the ~~Financing~~Company and the Company Subsidiaries, ~~prior~~ which Parent determines (and the Company does not unreasonably object) to ~~the Closing for which it has not received prior reimbursement by~~ include in a customary “public side” offering or on behalf of Buyer, or would cause Seller or any of its Affiliates to breach this Agreement or become unable to satisfy a condition to the Closing, (B) nothing herein shall require such cooperation from Seller or its Affiliates to the extent it would unreasonably interfere marketing document in connection with the ongoing operations of Seller or its Affiliates and (C) there shall be no action, Liability or obligation of Seller or its Affiliates under any certificate, agreement, arrangement, document or instrument relating to the Financing. Notwithstanding anything to the contrary in this Section 6.10, neither Seller nor its Affiliates shall be in breach of the covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth herein. (b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement of the Financing, any other financing and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement. (c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii) and (iv) of Section 6.10(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 made therein, in the light of the circumstances under which they were made, not misleading.

Appears in 1 contract

Sources: Agreement and Plan of Merger (Foot Locker, Inc.)

Financing Cooperation. (a) ~~For purposes~~ From the date hereof until the Closing (or the earlier termination of this Agreement pursuant to Section ~~6.10~~7.01), subject to the limitations set forth in this Section 5.16, and unless otherwise agreed by Parent, the ~~term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise. Prior to the Closing, Seller~~ Company shall, and shall cause its Subsidiaries to, use its and their reasonable best efforts to ~~cause each~~ cooperate with Parent as reasonably requested by Parent in connection with Parent’s arrangement of ~~its Affiliates~~ the Financing at Parent’s sole cost and ~~Representatives to, use~~ expense. Such cooperation will include using reasonable best efforts to provide to Buyer such cooperation reasonably requested by Buyer and reasonably required in connection with the Financing or the Alternate Financing, including (to the extent reasonably requested and reasonably required):to: (i) ~~participating~~ make appropriate officers reasonably available, with appropriate advance notice and at times and locations reasonably acceptable to the Company, for direct contact with the Financing Parties, including participation in a ~~customary and~~ reasonable number of bank meetings, one-on-one meetings, presentations, rating agency presentations and due diligence ~~sessions, drafting sessions, road shows and~~ sessions with ~~rating agencies~~proposed lenders, lead arrangers, initial purchasers, placement agents, underwriters or other agents, lenders or investors for the Financing; (ii) ~~assisting~~ ensure that any syndication efforts with respect to the ~~preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered or otherwise)~~ Financing benefit from the existing lending and ~~similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit~~ investment banking relationships of the ~~Business and auditors comfort letter~~Company; (iii) ~~as promptly as reasonably practical~~provide reasonable assistance with the preparation of customary materials for lender and investor presentations, confidential information memoranda and in no event later than March 31, 2013, furnishing Buyer with (x) audited balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with financial and other information regarding the Business and the Assets similar customary documents as may be reasonably requested by ~~Buyer (including~~ Parent or any Financing Party, in each case, with respect to information relating to the Company and its Subsidiaries in connection with ~~Buyer’s preparation~~ customary marketing efforts of ~~pro forma financial statements~~Parent for all or any portion of the Financing; (iv) furnish Parent and the Financing Parties with (A) audited consolidated balance sheets and related audited consolidated statements of operations, comprehensive income, shareholders’ equity and cash flows of the Company as of the end of and for each of the fiscal years that have ended on or after September 28, 2018 and at least sixty (60) days prior to the Effective Time (the “Annual Financial Statements”); (B) unaudited consolidated balance sheets and related unaudited consolidated statements of operations, comprehensive income and cash flows of the Company as of the end of and for each quarterly period that has ended after the most recent Annual Financial Statements and at least forty (40) days prior to the Effective Time and for the comparable period of the prior fiscal year, together with all related notes and schedules thereto, in the case of each of clauses (A) and (B), ~~including unaudited interim financial statements~~prepared in all material respects in accordance with GAAP and in compliance with Regulation S-X (other than Rules 3-03(e), ~~financial data~~3-09, ~~projections, audit reports~~ 3-10 and ~~other information~~ 3-16 of ~~the type required by~~ Regulation S-X and ~~Regulation S-K~~ segment reporting); and (C) all other business and other information regarding the Company and the Company Subsidiaries reasonably requested by Parent and customary in connection with the Financing as is necessary for Parent to prepare pro forma financial statements of Parent of the ~~Securities Act~~ nature required pursuant to paragraph 4 of ~~1933~~ Exhibit B to the Commitment Letter; (v) furnish Parent and the Financing Parties with copies of such customary historical financial data with respect to the Company and its Subsidiaries which is prepared by the Company in the ordinary course of business as is reasonably requested by Parent or any Financing Party and is customarily required for ~~a registered public offering,~~ the arrangement and ~~of type and form customarily included in private placements under Rule 144A, to consummate the offering(s)~~ syndication of debt ~~or equity securities contemplated by~~ financings similar to the ~~Financing, or as otherwise~~ Financing committed pursuant to the Debt Letters; (vi) assist with the preparation of appropriate and customary materials relating to the Company and its Subsidiaries for rating agency presentations and similar documents reasonably required in connection with the Financing, or as otherwise necessary in order to assist in receiving customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt or equity securities contemplated by the Financing (all such information in clause (iii) and this clause (iv), including the Carve-Out Financials, the “Required Information”); (v) providing information relating to the Business that is reasonably available to it to assist in the preparation of any credit agreements, indentures, 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 Buyer; (vi) furnishing Buyer and their Financing sources as promptly as practicable all financial information required to be delivered pursuant to the Financing Letter and monthly financial statements for the Business (to the extent prepared in the ordinary course of business); (vii) assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Financing, as reasonably requested by Buyer; provided that (A) nothing herein shall require such cooperation to the extent it would require Seller or any of its Affiliates to waive or amend any terms of this Agreement, incur any Liabilities, pay any fees, reimburse any expenses, in each case, with respect to information relating to the ~~Financing~~Company and its Subsidiaries; (vii) at least four (4) Business Days prior to the Closing, provide all information reasonably requested by Parent or Merger Sub and the Financing Parties regarding the Company and its Subsidiaries under applicable “know your customer,” anti-money laundering rules and regulations and the USA PATRIOT Act of 2001 and the Customer Due Diligence Requirements for Financial Institutions issued by the U.S. Department of Treasury Financial Crimes Enforcement Network under the Bank Secrecy Act, as published May 11, 2016 and effective May 11, 2018, and as amended, from time to time, in each case, requested in writing at least nine (9) days prior to the Closing Date; (viii) provide customary authorization letters authorizing the distribution of information to prospective lenders and containing a customary representation to the Financing Parties for ~~which it has~~ the Financing that such information does not ~~received prior reimbursement~~ contain a material misstatement or omission and containing a representation to the Financing Parties that the public side versions of such documents, if any, do not include material non-public information about the Company and its Subsidiaries or its or their securities; (ix) assist with the preparation of any pledge and security documents as may be reasonably requested by Parent or ~~on behalf~~ Merger Sub; provided, that no obligation of ~~Buyer, or would cause Seller~~ the Company or any Company Subsidiary under any such document or agreement shall be effective until the Closing; (x) facilitate the pledging of collateral owned by the Company and its ~~Affiliates~~ Subsidiaries as reasonably requested by Parent; provided, that no pledge shall be effective until the Closing; (xi) assist with the preparation of customary pay-off documents or other definitive termination or release documents with respect to ~~breach this~~ the Existing Credit Agreement as may be reasonably requested by Parent or ~~become unable to satisfy a condition~~ Merger Sub; provided, that no obligation of the Company or any Company Subsidiary under any such document or agreement shall be effective until the Closing; and (xii) on or prior to the Closing, at the written request of Parent, the Company shall (i) furnish the trustee under the Indenture, dated April 8, 2015 (the “Indenture”), relating to TA Mfg Limited’s 3.625% Senior Notes due 2023 (the “Notes”), a notice of redemption in form and substance reasonably satisfactory to Parent and in compliance with the Indenture (the “Notice of Redemption”) for any and all of the outstanding Notes, and (ii) take all other actions, other than the payment or deposit of amounts required to redeem the Notes (except to the extent such amounts have been provided by Parent or Merger Sub to the Company at the Closing), and prepare and deliver all other documents as may be reasonably necessary to cause the redemption of all outstanding Notes at the Closing; provided, however, that such notice shall not be required to be issued by the Company prior to the Closing unless (A) the redemption provided for in such notice is conditioned on the occurrence of the Closing and (B) arrangements satisfactory to the Company have been made that require Parent or Merger Sub to deposit with the trustee under the Indenture all funds required by the Indenture by the time required by the Indenture in order to complete the redemption of the Notes at the Closing. Upon delivery of the Notice of Redemption to the trustee under the Indenture, the Company shall provide to Parent a true and correct copy of the Notice of Redemption; provided, that nothing ~~herein~~ in this Agreement shall require the Company to cause the delivery of (A) legal opinions or reliance letters, (B) any financial information in a form not customarily prepared by the Company with respect to such period or (C) any financial information with respect to a fiscal period that has not yet ended or has ended less than forty (40) days prior to the date of such request (or, in the case of Annual Financial Statements, sixty (60) days prior to such request). (b) Notwithstanding anything to the contrary contained in this Agreement (including this Section 5.16), (i) nothing in this Agreement (including this Section 5.16) shall require any such cooperation ~~from Seller or its Affiliates~~ to the extent that it ~~would~~ would: (A) require the Company or any Company Subsidiary to pay any commitment or other fees, reimburse any expenses or otherwise incur any actual or potential liabilities or give any indemnities prior to the Closing (in each case, to the extent not subject to the reimbursement or indemnity obligations of the Parent hereunder); (B) unreasonably interfere with the ongoing business or operations of ~~Seller or its Affiliates and~~ any Company Entity; (C) ~~there shall~~ require any Company Entity to enter into or approve any agreement or other documentation 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 (in each case, other than customary authorization letters), (D) require the Company, any of the Company Subsidiaries or any of their respective boards of directors (or equivalent bodies) to approve or authorize the Financing prior to the Closing; (E) require any action that would conflict with or violate the Organizational Documents of any Company Entity or any Laws, orders or the contracts governing the existing Indebtedness of any Company Entity or result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or default under, any contract to which any Company Entity is a party; (F) cause any representation or warranty or covenant in this Agreement to be breached by the Company or any of its Subsidiaries; (G) cause any director, officer, employee or stockholder of the Company or any of its Subsidiaries to take any action that would reasonably be expected to result in personal liability to such director, officer, employee or stockholder; (H) provide access to or disclose information that would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries; or (I) prepare separate financial statements for any Company Subsidiary or change any fiscal period or prepare any financial statements or information that are not available to it and prepared in the ordinary course of its financial reporting practice; and (ii) no action, ~~Liability~~ liability or obligation (including any obligation to pay any commitment or other fees or reimburse any expenses) of ~~Seller~~ the Company, its Subsidiaries, or ~~its Affiliates~~ any of their respective Representatives under any certificate, agreement, arrangement, document or instrument ~~relating~~ related to the ~~Financing. Notwithstanding anything to the contrary in this Section 6.10, neither Seller nor its Affiliates~~ Financing shall be effective until the Closing (in ~~breach of the covenant set forth~~ each case, other than customary authorization letters referred to in ~~this~~ Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth herein. (b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement of the Financing, any other financing and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement5.16(a)(viii)). (c) ~~Seller will use~~ Parent shall (i) promptly upon request by the Company, reimburse (or cause to be reimbursed) the Company for all of its reasonable ~~best efforts~~ and documented out-of-pocket fees and expenses (including fees and expenses of counsel and accountants) (but, for the sake of clarity, excluding the costs of the Company’s preparation of its annual and quarterly financial statements) incurred by the Company, any of the Company Subsidiaries, any of its or their Representatives in connection with any cooperation contemplated by this Section 5.16 and (ii) indemnify and hold harmless the Company, the Company Subsidiaries and its and their Representatives against any claim, loss, damage, injury, liability, judgment, award, penalty, fine, Tax, reasonable cost (including reasonable cost of investigation), reasonable expense (including reasonable fees and expenses of counsel and accountants) or reasonable settlement payment incurred as a result of, or in connection with, such cooperation or the Financing and any information used in connection therewith, and such Representatives shall be third party beneficiaries of this Section 5.16, in each case of the foregoing clause (ii), except (A) with respect to ~~update Required Information~~ any historical information prepared by, and provided in writing by, the Company or any of its Subsidiaries expressly for use in connection with the Financing or (B) to ~~Buyer~~ the extent a court of competent jurisdiction has determined in a final, non-appealable judgment that any such claim, loss, damage, injury, liability, judgment, award, penalty, fine, Tax or cost has arisen from the gross negligence or willful misconduct of the Company or the Company Subsidiaries. All non-public or other confidential information provided by the Company and its Affiliates and Representatives to Parent and its Affiliates pursuant to ~~clauses~~ this Section 5.16 shall be kept confidential in accordance with Section 5.03. (~~iii~~d) The Company hereby consents to the reasonable use prior to the Closing of all of their and ~~(iv) of Section 6.10(a) as may be necessary such that~~ their Affiliates logos, names and trademarks in connection with 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 made therein, in the light~~ syndication of the ~~circumstances under which they were made~~Financing; provided that such logos, names and trademarks shall be used solely in a manner that is not ~~misleading~~intended or reasonably likely to harm or disparage the Company or its reputation or goodwill.

Appears in 1 contract

Sources: Merger Agreement (Esterline Technologies Corp)

Financing Cooperation. (a) ~~For purposes of this Section 6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise.~~ Prior to the ~~Closing~~Effective Time (or the earlier termination of this Agreement pursuant to Section 8.1), ~~Seller~~ the Company shall, and shall cause the Company Subsidiaries to, use its and their reasonable best efforts to, and shall use its reasonable best efforts to cause ~~each of~~ its ~~Affiliates~~ and their respective Representatives to, ~~use~~ provide customary cooperation and customary financial information, in each case that is reasonably requested by Parent in connection with any financing (the “Financing”) obtained or to be obtained by Parent for the purpose of financing the Transactions or any transaction undertaken in connection therewith (it being understood that the receipt of any such financing is not a condition to Parent’s obligation to consummate the Merger), including by using reasonable best efforts to ~~provide~~ (i) furnish, or cause to ~~Buyer such cooperation~~ be furnished, to Parent (x) audited consolidated balance sheets and related consolidated statements of operations and cash flows for the Company for each of the three most recently completed fiscal years of the Company ended at least one hundred eighty (180) days prior to the Closing Date prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year and (y) limited unaudited consolidated balance sheets and related consolidated statements of operations and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes and in a manner consistent with past practice) for each subsequent fiscal quarter ended on a date that is at least sixty (60) days before the Closing Date, (ii) cause the Company’s and the Company Subsidiaries’ independent accountants, as reasonably requested by ~~Buyer~~ Parent, to consent to the use of their audit reports on the financial statements of the Company and ~~reasonably required~~ the Company Subsidiaries in any materials relating to the Financing or in connection with any filings made with the SEC or pursuant to the Securities Act or Exchange Act in connection with the Financing and to provide any “comfort letters” (including drafts thereof which such accountants are prepared to issue at the time of pricing and at closing of any offering or placement of the ~~Alternate~~ Financing~~, including (to the extent~~ ) necessary and reasonably requested by Parent in connection with any debt capital markets transaction comprising a part of the Financing and ~~reasonably required): (i) participating~~ to participate in a reasonable and customary ~~and reasonable number of meetings, presentations,~~ due diligence sessions, ~~drafting sessions~~which sessions shall be telephonic or held by videoconference and held at reasonable times, road shows and sessions with rating agencies; (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered or otherwise) and similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii) ~~as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer~~ assist Parent with ~~(x) audited balance sheets for~~ the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties to the Financing Letter with financial and other information regarding the Business and the Assets as may be reasonably requested by Buyer (including in connection with Buyer’s preparation of pro forma financial ~~statements), including unaudited interim~~ information and pro forma financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, statements necessary or customary to ~~consummate the offering(s) of debt~~ be prepared or ~~equity securities contemplated by the Financing, or as otherwise reasonably required~~ delivered in connection with financings of the ~~Financing, or~~ same type as otherwise necessary in order to assist in receiving customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt or equity securities contemplated by the Financing ~~(all such information in clause (iii)~~ and ~~this clause~~ (iv~~), including the Carve-Out Financials, the “Required Information”); (v~~) ~~providing information relating to the Business that is reasonably available to it to assist in the preparation~~ cooperate with providers of any credit agreements, indentures, 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 Buyer; (vi) furnishing Buyer and their Financing sources as promptly as practicable all financial information required to be delivered pursuant to the Financing Letter and monthly financial statements for the Business (to the extent prepared in ~~the ordinary course of business); (vii) assisting Buyer to obtain waivers~~performing due diligence; provided, ~~consents~~however, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Financing, as reasonably requested by Buyer; provided that (A) ~~nothing herein shall require~~ no such cooperation shall be required to the extent it would (i) unreasonably disrupt the conduct of the Company’s business, (ii) require ~~Seller~~ the Company or the Company Subsidiaries to incur any fees, expenses or other liability prior to the Effective Time for which it is not promptly reimbursed or simultaneously indemnified, (iii) be reasonably expected to cause any director, officer or employee of the Company or any ~~of its Affiliates~~ Company Subsidiary to incur any personal liability, (iv) require the Company or any Company Subsidiary to waive or amend any terms of this ~~Agreement~~Agreement or (v) require the Company to provide any information that would conflict with any confidentiality obligations applicable to the Company or any Company Subsidiary, ~~incur~~ is prohibited or restricted by applicable Law or is legally privileged (provided, however, that the Company shall notify Parent if it is withholding any ~~Liabilities, pay~~ information in reliance on this clause (v) and use its commercially reasonable efforts to make appropriate substitute arrangements to permit reasonable disclosure not in violation of such confidentiality obligations or Law or to allow for such access or disclosure to the maximum extent that does not result in a loss of such legal privilege); and (B) the Company and the Company Subsidiaries shall not be required to execute any ~~fees, reimburse~~ credit or security documentation or any ~~expenses~~other definitive agreement (other than customary authorization or management representation letters) or provide any indemnity, in each ~~case, with respect to the Financing~~case of this clause (B), prior to the ~~Closing for which it has not received prior reimbursement~~ Effective Time; provided, further, that in no event shall the Company’s breach of any obligations in this Section 6.13(a) be considered in determining the satisfaction of the condition set forth in Section 7.2(b) unless such breach is the primary cause of Parent being unable to obtain the proceeds of the Financing at the Effective Time. (b) Parent shall indemnify and hold harmless the Company, the Company Subsidiaries, and their respective Representatives from and against any and all liabilities or losses suffered or incurred by them in connection with the Financing and any information utilized in connection therewith, except in the event such liabilities or losses arose out of or result from (i) the willful misconduct, gross negligence, bad faith or fraud of the Company and the Company Subsidiaries or any of their respective Representatives, (ii) the material breach by the Company of its obligations under this Agreement or (iii) any material misstatement or omission in information provided in writing hereunder by or on behalf of ~~Buyer~~the Company, ~~or would cause Seller~~ the Company Subsidiaries or any of ~~its Affiliates to breach~~ their respective Representatives for use in connection with the Financing (clauses (i) through (iii) collectively, the “Indemnity Exceptions”). If this Agreement is terminated pursuant to Article VIII, Parent shall, promptly upon request by the Company, reimburse the Company and the Company Subsidiaries for all reasonable and documented out-of-pocket costs actually incurred by the Company and the Company Subsidiaries (including those of its Representatives) in connection with taking action required or ~~become unable~~ requested by Parent pursuant to satisfy a condition to the Closing, (B) nothing herein shall require such cooperation from Seller or its Affiliates to the extent it would unreasonably interfere with the ongoing operations of Seller or its Affiliates and (C) there shall be no action, Liability or obligation of Seller or its Affiliates under any certificate, agreement, arrangement, document or instrument relating to the Financing. Notwithstanding anything to the contrary in this Section ~~6.10~~6.13, neither Seller nor its Affiliates shall be in breach of the covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth herein. (b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, other than those arising out of or resulting from the Indemnity Exceptions. For the avoidance of doubt, the Parties acknowledge and agree that the provisions contained in this Section 6.13 represent the sole obligation of the Company, the Company Subsidiaries and their respective affiliates and Representatives with respect to cooperation in connection with the arrangement of the ~~Financing, any~~ Financing and no other ~~financing and/or the~~ provision of ~~information utilized in connection therewith~~ this Agreement (including the Exhibits and the Company Disclosure Letter) shall be deemed to ~~the fullest extent permitted by applicable Legal Requirement~~expand or modify such obligations. (c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii) and (iv) of Section 6.10(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 made therein, in the light of the circumstances under which they were made, not misleading.

Appears in 1 contract

Sources: Merger Agreement (Palo Alto Networks Inc)

Financing Cooperation. (a) ~~For purposes of this Section 6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise.~~ Prior to the ~~Closing~~earlier of the termination of this Agreement pursuant to Article VIII and the Effective Time, ~~Seller~~ the Company shall, and shall ~~use reasonable best efforts to~~ cause ~~each of~~ its ~~Affiliates~~ Subsidiaries and its and their respective Representatives to, ~~use reasonable best efforts~~ at Investor’s sole expense (such expense to ~~provide to Buyer such cooperation reasonably requested by Buyer and reasonably required~~ be reasonable), cooperate in connection with the arrangement of the Financing ~~or the Alternate Financing, including (to the extent~~ as may be reasonably requested by Investor (provided that such requested cooperation is otherwise consistent with this Agreement and ~~reasonably required):~~does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), including: (i) subject to Section 6.8, providing to the Financing Sources financial and other information in the Company’s possession with respect to the Merger, making the Company’s senior management, officers and advisors available to assist the Financing Sources and otherwise reasonably cooperating in connection with the consummation of the Financing, including, upon reasonable prior written notice, assisting in preparation for and participating in a ~~customary and~~ reasonable number of ~~meetings~~calls and meetings in a reasonable location (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders of, the Financing and members of senior management of the Company), presentations, due diligence ~~sessions~~(including accounting due diligence) and presentations to prospective Financing Sources and investors, ~~drafting sessions~~and cooperating with the syndication efforts of Investor and Acquisition Sub and their Financing Sources as contemplated by the Debt Commitment Letters, ~~road shows and sessions~~ in each case in connection with ~~rating agencies~~all or any portion of the Financing; (ii) as promptly as practical, furnishing Investor, Acquisition Sub and the Financing Sources, and their respective Representatives, with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Investor in connection with the Debt Financing or that are necessary for the satisfaction of the obligations and conditions set forth in the Debt Commitment Letters, including (A) the audited consolidated balance sheets and related consolidated statements of income, cash flows and shareholders’ equity of the Company for the three most recently completed fiscal years ended at least 90 days before the Closing, accompanied by an unqualified report thereon by its independent registered public accountants, and (B) unaudited consolidated balance sheets and related statements of income and cash flows of the Company for each subsequent fiscal quarter ended at least 45 days before the Closing, all of which financial statements shall be prepared in accordance with generally accepted accounting principles in the United States (such information set forth in sub-clauses (A) and (B), collectively, the “Required Information”); (iii) assisting with the preparation of ~~materials for rating agency presentations, offering documents, private placement memoranda,~~ bank information memoranda, ~~prospectuses (registered or otherwise)~~ business projections, lender presentations and similar documents ~~for~~ required in connection with the Financing, including execution and delivery of customary representation letters in connection with ~~an audit~~ bank information memoranda authorizing the distribution of information to prospective lenders and identifying any portion of such information that constitutes material, nonpublic information regarding the Company or its Subsidiaries or their respective securities, including (A) providing appropriate representations in connection with the preparation of financial statements and other financial data of the ~~Business~~ Company and auditors comfort letter; (iii) as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer with (x) audited balance sheets for the Business as at December 31, 2011 and 2012its Subsidiaries, and (yB) ~~audited statements~~ using reasonable best efforts to assist Investor in connection with the preparation by Investor of ~~income~~ pro forma financial information and ~~cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days of the end of the relevant fiscal quarter, unaudited interim~~ financial statements ~~for each fiscal quarter ending~~ to the extent necessary or reasonably required by Investor’s financing sources (including the Debt Financing sources) to be included in any marketing materials; it being understood and agreed that such documents, memoranda and materials shall contain disclosure and pro forma financial statements reflecting the Company (after ~~January 1, 2013 (collectively,~~ giving effect to the ~~“Carve-Out Financials”)~~Merger) as obligor; (iv) satisfying the conditions set forth in ~~addition~~ the Debt Commitment Letters (to the ~~information~~ extent the satisfaction of such conditions requires actions by or cooperation of the Company, its Subsidiaries and its or their Representatives); (v) using reasonable best efforts in obtaining consents to the use of legal opinions, hedging agreements, appraisals, surveys, engineering reports, title insurance and other documentation and items required ~~pursuant to clause~~ by the Debt Commitment Letters or as are reasonably requested by Investor and, if requested by Investor or Acquisition Sub, cooperating with and assisting Investor or Acquisition Sub in obtaining such documentation and items; (~~iii), above~~vi) executing and delivering, as ~~promptly as reasonably practical~~of the Effective Time, ~~furnishing Buyer~~ any definitive financing documents, including any credit agreements, guarantees, pledge agreements, security agreements, mortgages, deeds of trust and other security documents or other certificates, documents and instruments relating to guarantees, the pledge of collateral and other ~~parties~~ matters ancillary to the Financing ~~Letter~~ (including a certificate of the chief financial officer of the Company or any Subsidiary with ~~financial~~ respect to solvency matters (or a solvency opinion with respect to such solvency matters) and ~~other information regarding~~ consents of accountants for use of their reports in any materials relating to the ~~Business and the Assets~~ Debt Financing) as may be reasonably requested by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities contemplated by the Financing, or as otherwise reasonably required Investor in connection with the ~~Financing, or as~~ Financing and otherwise ~~necessary in order to assist in receiving customary “comfort”~~ reasonably facilitating the pledging of collateral (including ~~“negative assurance” comfort~~(i) ~~from independent accountants~~ cooperation in connection with the ~~offering(s~~pay-off of existing indebtedness and the release of related Liens (including the Indebtedness outstanding and Liens existing under and in connection with the Citi Loan Agreement), such cooperation to include keeping Investor promptly apprised of the status of discussions with such lender(s) and any issues arising out of ~~debt~~ such discussions that could materially affect Investor or ~~equity securities contemplated~~ the Debt Financing, and (ii) cooperation in connection with Investor’s efforts to obtain environmental assessments and title insurance), and the replacement or backing of any outstanding letter of credit maintained or provided by the ~~Financing (all such information in clause (iii) and this clause (iv), including~~ Company or its Subsidiaries effective as of the Carve-Out Financials, the “Required Information”); (v) providing information relating to the Business that is reasonably available to it to assist in the preparation of any credit agreements, indentures, 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 Buyer; (vi) furnishing Buyer and their Financing sources as promptly as practicable all financial information required to be delivered pursuant to the Financing Letter and monthly financial statements for the Business (to the extent prepared in the ordinary course of business)Closing Date; (vii) ~~assisting Buyer~~ taking all actions reasonably necessary to permit the Financing Sources to conduct audit examinations, appraisals and other evaluations with respect to the Company’s and its Subsidiaries’ current assets and other collateral, and to evaluate its cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements; (viii) seeking to ensure that the Financing Sources benefit materially from existing lender relationships of the Company and its Subsidiaries, if applicable, and furnishing at least five (5) Business Days prior to the Closing Date all documentation and other information required by Governmental Authorities under or otherwise reasonably requested by Investor in connection with applicable “know your customer,” anti-money laundering, anti-terrorism, foreign corrupt practices and similar laws, rules and regulations of all applicable jurisdictions related to the Financing; (ix) using reasonable best efforts to obtain waivers, consents, estoppels and approvals from other parties to ~~Contracts~~material leases, ~~material Leases~~ encumbrances and ~~Easements, and Encumbrances~~ contracts to which the ~~Assets~~ Company or any Subsidiary of the ~~Business are bound~~Company is a party and to arrange discussions among Investor, Acquisition Sub and their Financing Sources with other parties to material leases, encumbrances and contracts; and (~~viii~~x) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating taking all corporate actions (the effectiveness of which shall be subject to the occurrence of the Effective Time) necessary to permit the consummation of the Debt Financing, ~~as reasonably requested by Buyer;~~ and to permit the proceeds thereof to be made available to Investor on the Closing Date to consummate the Merger. (b) The Company will periodically update any such Required Information provided to Investor in order to ensure that such Required Information is Compliant. The Company hereby consents to the reasonable use of its and its Subsidiaries’ logos in connection with the Debt Financing, provided that ~~(A) nothing herein shall require~~ such ~~cooperation~~ logos are used in a manner that is not reasonably likely to harm or disparage the ~~extent it would require Seller~~ Company or its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries in any material respect. Investor shall (x) promptly after the written request of the Company, reimburse the Company for all reasonable and documented out-of-pocket expenses and costs incurred in connection with the Company’s or its Affiliates’ cooperation obligations under this Section 6.16 and (y) indemnify and hold harmless the Company and its Affiliates and its and their respective Representatives from and against, and compensate and reimburse the Company and its Affiliates and its and their respective Representatives for, any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the Financing and any information utilized in connection therewith (other than, in the case of clause (x) and (y), losses, damages, claims, costs or expenses resulting from (A) any inaccurate or misleading financial information relating to ~~waive~~ the Company and its Subsidiaries provided by the Company in writing specifically for use in connection with the syndication of the Financing and (B) any material breach by the Company or ~~amend~~ any ~~terms~~ of its Subsidiaries of its obligations under this ~~Agreement, incur~~ Section 6.16). Neither the Company nor any ~~Liabilities,~~ of its Subsidiaries shall be required to (1) pay any ~~fees, reimburse any expenses,~~ commitment or other similar fee in ~~each case,~~ connection with the Financing prior to the Effective Time that is not advanced or substantially simultaneously reimbursed by Investor or (2) be an obligor with respect to the Financing, ~~prior to the Closing for which it has not received prior reimbursement by~~ or ~~on behalf of Buyer, or would cause Seller or~~ incur any of its Affiliates to breach this Agreement or become unable to satisfy a condition to the Closing, (B) nothing herein shall require such cooperation from Seller or its Affiliates to the extent it would unreasonably interfere with the ongoing operations of Seller or its Affiliates and (C) there shall be no action, Liability or obligation ~~of Seller or its Affiliates~~ under any certificate~~, agreement, arrangement~~, document or instrument relating to the ~~Financing. Notwithstanding anything~~ Debt Financing that is effective, in each case prior to the ~~contrary in this Section 6.10~~Effective Time, ~~neither Seller nor its Affiliates shall~~ or (3) take any action (A) under any certificate, document or instrument relating to the Debt Financing that is not contingent upon the Closing (including the entry into any agreement that is effective before the Effective Time) or (B) that would reasonably be ~~in breach~~ expected to cause any director, officer or employee of the covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth herein. (b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred Company or ~~suffered by, or asserted against,~~ any of ~~them, directly or indirectly~~ its Subsidiaries to incur any personal liability relating ~~to, arising out of or resulting from~~ the ~~arrangement of the~~ Debt Financing~~, any other financing and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement~~. (c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii) and (iv) of Section 6.10(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 made therein, in the light of the circumstances under which they were made, not misleading.

Appears in 1 contract

Sources: Merger Agreement (Omnivision Technologies Inc)

Financing Cooperation. (a) ~~For purposes~~ From the date hereof and ending at the earlier of (i) the Closing Date and (ii) termination of this ~~Section 6.10~~Agreement, the ~~term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise. Prior to the Closing, Seller shall, and shall~~ Company will use reasonable best ~~efforts~~ efforts, and will cause its Subsidiaries to ~~cause each of its Affiliates and Representatives to,~~ use reasonable best ~~efforts~~ efforts, to provide to ~~Buyer such~~ Buyer, at the sole expense of Buyer, all cooperation reasonably requested by Buyer ~~and reasonably required~~ in connection with the ~~Financing~~ arrangement of any financing deemed reasonably necessary by Buyer in connection with the Transactions (the “Financing”) (provided, however, that such requested cooperation does not unreasonably interfere with the ongoing business or operations of the ~~Alternate Financing~~Company), including (A) upon reasonable notice, making the senior officers of the Company available to ~~the extent reasonably requested and reasonably required): (i) participating~~ participate in a ~~customary and~~ reasonable number of meetings with prospective lenders at reasonable times; (B) upon reasonable notice, participating in meetings~~, presentations~~, due diligence sessions, drafting sessions, presentations, “road ~~shows~~ shows” and sessions with ~~rating~~ prospective financing sources, investors and ratings agencies; , and reasonably cooperating with the marketing efforts of Buyer and its financing sources at reasonable times; (C) furnishing the Buyer and its lenders with (i) the Financial Statements, (ii) the audited consolidated financial statements of ZM as of and for the years ended June 30, 2018 and June 30, 2017, (iii) quarterly unaudited financial statements of the Company for the fiscal quarter beginning January 1, 2019 and (iv) other information regarding the Company and the Subsidiaries reasonably requested by Buyer of the type required by Regulation S-X or Regulation S-K under the Securities Act and of the type and form customarily included in a (x) bank information memorandum, (y) registered offering of debt securities by Regulation S-X and Regulation S-K under the Securities Act and (z) private placement of debt securities pursuant to Rule 144A promulgated under the Securities Act, Section 4(a)(2) of the Securities Act or Regulation D promulgated under the Securities Act, all of which will be provided by the Company as promptly as practicable after the date of this Agreement and in any event not later than the Outside Date; provided that, notwithstanding the foregoing, in no event shall the Company or its Subsidiaries be required to provide (i) financial statements or other financial data (including selected financial data) for the Company for any period other than as of and for the fiscal year ended December 31, 2018, (ii) pro forma financial information or projections, including pro forma financial information that may be required by Article 11 of Regulation S-X, (iii) financial information otherwise required by Rule 3-03(e), Rule 3-09, Rule 3-10 and Rule 3-16 of Regulation S-X, (iv) “segment reporting,” (v) any Compensation Discussion and Analysis required by Item 402 of Regulation S-K and information regarding executive compensation related to the SEC Release Nos. 33-8732A, 34-54302A and IC-27444A or (vi) other customary exceptions; (D) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information ~~memoranda, prospectuses~~ memoranda (~~registered or otherwise)~~ including a bank information memorandum that does not include material non-public information and ~~similar documents for~~ the ~~Financing, including execution and~~ delivery of customary ~~representation~~ authorization letters ~~in connection~~ with ~~an audit~~ respect to the bank information memoranda executed by a senior officer of the ~~Business~~ Company), prospectuses and ~~auditors~~ similar documents; (E) directing the Company’s accountants to provide customary accountants’ comfort ~~letter;~~ letters; (~~iii~~F) providing information about the Company and its subsidiaries as ~~promptly as~~ is reasonably ~~practical, and~~ requested in ~~no event later than March 31, 2013, furnishing Buyer with~~ writing by Buyer’ financing sources at least ten (x) audited balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited statements of income and cash flows for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (4510) days ~~of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition~~ prior to the ~~information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer and the other parties~~ Closing to the ~~Financing Letter with financial~~ extent required under applicable “know your customer” and ~~other information regarding the Business~~ anti-money laundering rules and the Assets as may be reasonably requested by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities 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 “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt or equity securities contemplated by the Financing (all such information in clause (iii) and this clause (iv)regulations, including the ~~Carve-Out Financials, the “Required Information”);~~ USA PATRIOT Act; (vG) providing ~~information relating~~ customary corporate diligence materials, including organizational documents; (H) arranging for access to any existing third-party diligence reports, including environmental and property inspection reports and any appraisals, together with customary reliance letters, and providing access to each property acquired in the Transactions to all the Buyer’s financing sources to complete their customary diligence; (I) providing copies of any title policies, title searches with respect to the ~~Business that is reasonably available~~ properties acquired in Transactions to ~~it to assist~~ the extent such documents are in the ~~preparation~~ possession or control of the Company or any of its Subsidiaries as of the date of this Agreement; and (J) executing and delivering any commitment letters, underwriting or placement agreements, registration statements, credit agreements, indentures, ~~purchase agreements, currency or interest hedging arrangements~~pledge and security documents, other definitive financing documents or other requested certificates or documents, ~~officer’s certificates~~including a customary solvency certificate by the chief financial officer of the Company; provided, ~~customary closing documents~~further, ~~or other certificates or documents with respect~~ that the Company shall only be obligated to deliver such information to the ~~Financing contemplated by the Financing as~~ extent they may be reasonably ~~requested by Buyer; (vi) furnishing Buyer~~ obtained from the books and ~~their Financing sources as promptly as practicable all financial~~ records of the Company and its Subsidiaries without undue effort or expenses and, in no event shall such information be deemed to include, or shall the Company otherwise be required to ~~be delivered pursuant to the Financing Letter and monthly~~ provide, pro forma financial statements for the Business (to the extent prepared in the ordinary course of business); (vii) assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating pro forma adjustments related to the Financing, as provided that, the Company and its Subsidiaries shall provide financial information reasonably requested by ~~Buyer~~Buyer necessary for Buyer to prepare its pro forma financial statements or pro forma adjustments; provided that neither the Company nor its Subsidiaries shall be responsible in any manner to provide information relating to (x) the proposed aggregate amount of debt and/or equity financing (as applicable), together with assumed interest rates, dividends (if any), fees and expenses relating to the incurrence of such debt or equity financing, for the Transactions contemplated hereby, (y) the assumed pro forma capitalization of the Company after giving effect to the Closing, the financing and the refinancing or repayment of any indebtedness of the Company and its Subsidiaries in connection therewith and (z) any post-Closing or pro forma assumed cost savings, synergies and similar adjustments (and the assumptions relating thereto) (all of which adjustments and assumptions shall be the responsibility of Buyer). (b) Notwithstanding the foregoing, nothing in this Agreement shall require the Company or any of its Subsidiaries or the Sellers’ Representative to (1) take or permit the taking of any action that (A) ~~nothing herein shall require such cooperation to the extent it~~ would require ~~Seller~~ the Company or any of its ~~Affiliates~~ Subsidiaries or the Sellers’ Representative to ~~waive~~ pass resolutions or ~~amend~~ consents to approve or authorize the execution of the Financing or execute or deliver any ~~terms~~ certificate, document, instrument or agreement or agree to any change or modification of ~~this Agreement~~any existing certificate, ~~incur any Liabilities~~document, ~~pay any fees, reimburse any expenses~~instrument or agreement, in each case, that is effective prior to the Closing, or that would be effective if the Closing does not occur, except for the authorization letters contemplated above, (B) would cause any representation or warranty in this Agreement to be breached, (C) would require the Company or any of its Subsidiaries or the Sellers’ Representative to pay any commitment or other similar fee, reimburse any third-party expense, provide any indemnities or incur any other expense, liability or obligation in connection with the Financing that is not, subject to the limitations therein, subject to reimbursement or is not otherwise indemnified by Buyer, (D) would cause any director, officer or employee or stockholder of the Company or any of its Subsidiaries or the Sellers’ Representative to incur any personal liability or (E) would reasonably be expected to result in a material violation or breach of, or a default under, any Material Contract to which the Company or any of its Subsidiaries or the Sellers’ Representative is a party, the organizational documents of the Company or any of its Subsidiaries or any Law, (2) provide access to or disclose information that the Company or any of its Subsidiaries or the Sellers’ Representative reasonably determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries or the Sellers’ Representative, jeopardize the trade secret status of any Company trade secrets, or violate any of their or its obligations with respect to confidentiality or (3) deliver or cause to be delivered any opinion of counsel or negative assurance letter. Nothing contained in this Section 6.6 or otherwise shall require the Company or any of its Subsidiaries or the Sellers’ Representative, prior to Closing, to be an issuer or other obligor with respect to the Financing. (c) Buyer shall, ~~prior to~~ promptly upon written request by the ~~Closing~~ Company, reimburse the Company for ~~which it has not received prior reimbursement~~ all out-of-pocket costs (including attorneys’ fees) incurred by ~~or on behalf of Buyer, or would cause Seller~~ the Company or any of its ~~Affiliates to breach~~ Subsidiaries in connection with the Financing or performing their obligations under this Section 6.6, whether or not the Transactions are consummated or this Agreement is terminated. Buyer shall indemnify and hold harmless the Company, its Subsidiaries, the Sellers’ Representative and its equity holders, Affiliates and Representatives from and against any and all Liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid or ~~become unable~~ payable in connection with or in respect of any thereof) suffered or incurred by the Company or any of its Subsidiaries or the Sellers’ Representative arising therefrom. All non-public or other confidential information provided by the Company or any of its Representatives pursuant to ~~satisfy a condition~~ this Section 6.6 shall be kept confidential in accordance with the Confidentiality Agreement, except that Buyer shall be permitted to disclose such information to potential financing sources and to ratings agencies during the ~~Closing~~syndication and marketing of any Financing, subject to customary confidentiality undertakings by such potential financing sources. None of the representations, warranties or covenants of the Company set forth in this Agreement shall be deemed to apply to, or deemed breached or violated by, any of the actions taken by the Company or any of its Subsidiaries at the request of Buyer pursuant to this Section 6.6. (Bd) ~~nothing herein shall require such cooperation from Seller or its Affiliates to~~ To the extent ~~it would unreasonably interfere~~ that this Section 6.6 requires the Company’s cooperation with respect to any of the obligations of Buyer relating to Financing, the Company shall be deemed to have complied with this Section 6.6 for purposes of Article VII if the Company has provided Buyer with the ~~ongoing operations of Seller or its Affiliates and (C) there shall be no action, Liability or obligation of Seller or its Affiliates~~ assistance required under ~~any certificate, agreement, arrangement, document or instrument relating~~ this Section 6.6 with respect to the Financing. Notwithstanding anything to the contrary in this ~~Section 6.10~~Agreement, ~~neither Seller nor its Affiliates shall be in breach of~~ the ~~covenant~~ condition set forth in Article VII, as it applies to the Company’s obligations under this Section ~~6.10 if it~~ 6.6, shall be deemed satisfied unless the Financing has ~~acted in good faith~~ not been obtained primarily as a result of the Company’s material breach of its obligations under this Section 6.6, which breach is a consequence of an act or failure to ~~comply~~ act by the Company with the ~~cooperation~~ actual knowledge that the taking of such act or failure to take such act would cause such breach. Notwithstanding anything to the contrary in this Agreement, Buyer acknowledges and ~~assistance set forth herein~~agrees that the obtaining of the Financing is not a condition to the Closing. (be) Buyer ~~shall indemnify~~ shall, upon the ~~Seller Indemnitees from~~request of Sellers, ~~against~~ keep Sellers informed on a current basis of the status of the Financing and material developments with respect thereto and provide Sellers promptly (and in ~~respect~~ no event later than within one (1) Business Day) with copies of any ~~Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement of~~ material definitive agreements related to the Financing~~, any other financing and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement~~. (c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii) and (iv) of Section 6.10(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 made therein, in the light of the circumstances under which they were made, not misleading.

Appears in 1 contract

Sources: Equity Purchase Agreement (Americold Realty Trust)

Appears in 1 contract

Sources: Merger Agreement (Fundtech LTD)

Financing Cooperation. (ai) ~~For purposes of this Section 6.10~~The Company agrees to, ~~the term “Financing”~~ and shall ~~include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise. Prior to the Closing, Seller shall~~cause its Subsidiaries to, and shall use its reasonable best efforts to cause ~~each of~~ its ~~Affiliates~~ and ~~Representatives~~ their representatives to, ~~use reasonable best efforts to~~ provide to ~~Buyer~~ Parent and Merger Sub, at Parent’s sole expense, such cooperation reasonably requested by ~~Buyer and reasonably required~~ Parent in connection with the arrangement of the Financing or (which for purposes of this Section 7.14 shall be deemed to include the ~~Alternate~~ Alternative Financing), ~~including~~ including, without limitation, (to A) participation by officers and employees of the ~~extent reasonably requested and reasonably required): (i) participating~~ Company in a ~~customary and~~ reasonable number of meetings, presentations, ~~due diligence sessions~~road shows, drafting sessions, ~~road shows~~ due diligence sessions and sessions with ~~rating~~ prospective lenders, investors and ratings agencies; , (iiB) ~~assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses~~ (~~registered or otherwise~~1) furnishing Parent and ~~similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii)~~ its Financing Sources as promptly as ~~reasonably practical, and in no event later than March 31, 2013, furnishing Buyer~~ practicable with (x) audited consolidated balance sheets as of October 2, 2009 and October 1, 2010 and related audited statements of income, stockholders’ equity and comprehensive income and cash flows of the Company and its Subsidiaries, for each of the ~~Business as at~~ years in the three-year period ended October 1, 2010, no later than December 3115, ~~2011 and 2012,~~ 2010 and (y) ~~audited~~ unaudited consolidated balance sheets and related statements of ~~income~~ income, stockholders’ equity and cash flows ~~for the Business for the three (3) years ended December 31, 2012 and (z) within forty-five (45) days~~ of the ~~end of the relevant fiscal quarter~~Company and its Subsidiaries, ~~unaudited interim financial statements~~ for each fiscal quarter ~~ending~~ ended after ~~January 1~~the date hereof but at least forty (40) days before the Closing Date, ~~2013~~ and comparable prior year periods, no later than such unaudited financial information is required to be filed by the Company under the Exchange Act (~~collectively, the “Carve-Out Financials”); (iv) in addition~~ without giving effect to ~~the information required pursuant to clause (iii~~any extension period), ~~above, as promptly as reasonably practical,~~ and (2) furnishing Buyer and the other parties to the Financing Letter with financial and other information regarding the Business and the Assets as may be reasonably requested by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim all financial statements, business and other financial data~~, projections~~, audit reports and other information regarding the Company and its Subsidiaries of the type and for the time periods that would be required by Regulation S-X and Regulation S-K of promulgated under the Securities Act ~~of 1933~~ for a registered public ~~offering~~offering of debt securities of the Company (provided that Parent shall be responsible for the preparation, with the assistance of the Company and its independent accountants, of pro forma financial statements), to the extent the same is of the type and form customarily included in an offering memorandum, private placement memorandum, and similar documents for private placements of high-yield bonds under Rule ~~144A~~144A promulgated under the Securities Act, including audits thereof to ~~consummate~~ the ~~offering(s)~~ extent so required (which audits shall be unqualified, except to the extent set forth in Section 1.1 of ~~debt or equity securities contemplated by~~ the ~~Financing~~Company Disclosure Letter), or ~~as otherwise reasonably required in connection with the Financing, or as~~ otherwise necessary ~~in order~~ to ~~assist in receiving~~ receive from the Company’s independent accountants customary “comfort” (including “negative assurance” comfort) ~~from independent accountants~~ with respect to the financial information to be included in ~~connection with the offering(s) of debt or equity securities contemplated by the Financing~~ such offering memorandum (all such information in ~~clause (iii) and~~ this clause (ivB), ~~including the Carve-Out Financials~~collectively, the “Required Information”); , (vC) ~~providing information relating to~~ assisting Parent and Merger Sub and the ~~Business that is reasonably available to it to assist~~ Financing Sources in the preparation of any ~~credit agreements, indentures, purchase agreements, currency or interest hedging arrangements, other definitive financing~~ offering documents, ~~officer’s certificates~~lender and investor presentations, rating agency presentations, marketing materials, private placement memoranda, bank information memoranda (including the delivery of customary ~~closing documents, or other certificates or~~ representation and authorization letters) and similar documents ~~with respect to~~ for the Financing ~~contemplated by~~ (all such documents and materials, the ~~Financing~~ “Offering Documents”), (D) assisting in negotiation of definitive documents as may be reasonably requested by ~~Buyer;~~ Parent, (viE) ~~furnishing Buyer~~ entering into such definitive financing documents and such other customary documents as may be reasonably requested by Parent, including officers certificates and a certificate of the chief financial officer of the Company with respect to solvency matters and including requesting customary legal opinions from outside counsel; provided that no obligation of the Company or any Subsidiaries of the Company under any agreement, document or pledge shall be operative until the Effective Time, (F) facilitating the pledging of collateral (including entering into mortgages and leasehold mortgages and all other documentation reasonably required for any real property related financing, if reasonably requested) and removal of Liens, provided that no pledge or removal of Liens shall be operative until the Effective Time, (G) cooperating to permit the prospective lenders involved in the Financing to evaluate and assess the assets of the Company and its Subsidiaries for the purpose of establishing collateral arrangements to the extent customary and reasonable, (H) obtaining assistance and cooperation of its accountants, including participating in a reasonable number of drafting and accounting due diligence sessions and providing consents for the use of their ~~Financing sources as promptly as practicable all financial information required to be delivered pursuant~~ reports in materials related to the Financing ~~Letter~~ or Alternative Financing and ~~monthly financial statements for the Business~~ comfort letters, and providing such accountants with any documentation requested by them in connection therewith, (~~to the extent prepared in the ordinary course of business); (vii~~I) ~~assisting Buyer~~ using reasonable best efforts to obtain ~~waivers~~surveys, consents, ~~estoppels and approvals from other parties to Contracts~~approvals, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reportsauthorizations, environmental assessments and ~~other inspections,~~ title insurance (including by providing such affidavits and ~~other documentation and items relating to the Financing,~~ non-imputation endorsements in connection therewith) as reasonably requested by ~~Buyer~~Parent, (J) adopting all customary Company Board resolutions and consents, subject to the occurrence of the Closing, necessary to permit the consummation of the Debt Financing, (K) obtaining customary payoff letters, Lien terminations and customary instruments of discharge and termination in full of all indebtedness and Liens, as reasonably requested, (L) using reasonable best efforts to assist Parent in obtaining corporate and facilities ratings for the Debt Financing, and (M) furnishing Parent and the Financing Sources promptly, and in any event at least five (5) days prior to the Closing Date, with all documentation and other information required by Governmental Entities with respect to the Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act. The Company hereby consents to the use 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 harm or disparage the Company or their marks; (ii) Notwithstanding anything to the contrary contained in this Agreement (including this Section 7.14(c)), (A) nothing ~~herein~~ in this Agreement (including this Section 7.14(c)) shall require any such cooperation to the extent that it would (1) require ~~Seller~~ the Company or any of its ~~Affiliates~~ Subsidiaries or representatives, as applicable, to waive or amend any terms of this ~~Agreement, incur any Liabilities,~~ Agreement or agree to pay any ~~fees~~commitment, consent or other fees or reimburse any ~~expenses, in each case, with respect to the Financing,~~ expenses prior to the ~~Closing for which it has not received prior reimbursement by or on behalf of Buyer~~Effective Time, or ~~would cause Seller~~ incur any liability or obligation or give any ~~of its Affiliates to breach this Agreement or become unable to satisfy a condition to~~ indemnities that is not contingent upon the ~~Closing~~Effective Time, (B2) ~~nothing herein shall require such cooperation from Seller or its Affiliates to the extent it would~~ unreasonably interfere with the ongoing business or operations of ~~Seller~~ the Company and its Subsidiaries, (3) require the Company or any of its ~~Affiliates and~~ Subsidiaries to take any action that will conflict with or violate the Company’s organizational documents or any Laws or the Contracts governing the existing Indebtedness of the Company or result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or default under, any Contract to which the Company or any of its Subsidiaries is a party, or (C4) ~~there shall be no action, Liability~~ result in any officer or ~~obligation~~ director of ~~Seller~~ the Company or any of its ~~Affiliates under~~ Subsidiaries incurring any ~~certificate, agreement, arrangement, document or instrument~~ personal liability with respect to any matters relating to the Financing~~. Notwithstanding anything~~ , and (B) any bank information memoranda and high-yield offering memoranda required in relation to the ~~contrary in this~~ Debt Financing, other than representation letters and authorization letters as required by Section ~~6.10~~7.14(c)(i)(C), ~~neither Seller nor~~ need not be issued by the Company or any of its ~~Affiliates~~ Subsidiaries and shall ~~be in breach of~~ contain disclosure and pro forma financial statements reflecting the ~~covenant set forth in this Section 6.10 if it has acted in good faith to comply with~~ Surviving Corporation and/or its Subsidiaries as the ~~cooperation and assistance set forth herein.~~obligor; (biii) ~~Buyer~~ Subject to the limitations in Section 7.14(c)(ii), the Company shall, and shall ~~indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating~~ cause its Subsidiaries to, arising out of or resulting from the arrangement of the Financing, any other financing and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement. (c) Seller will use its and their reasonable best efforts to ~~update Required Information provided to Buyer~~ cause its and their representatives to, at the sole expense of Parent, provide all cooperation reasonably requested by Parent in connection with any payment, purchase (pursuant to ~~clauses~~ tender offer or otherwise), redemption, defeasance, satisfaction and/or discharge of any outstanding Indebtedness of the Company or any Subsidiary in connection with the transactions contemplated hereby, including, without limitation, (~~iii~~x) the prepayment or discharge of any obligations owed by the Company and any Affiliate pursuant to the Company Existing Credit Facility and any related loan document (ivsubject to and conditioned upon the Closing), or (y) ~~of Section 6.10(a~~commencing, as soon as reasonably practicable following a request from Parent to do so, offers to purchase, and any related consent solicitations with respect to, any outstanding Indebtedness evidenced by indentures ("Note Indebtedness") ~~as may~~ on the terms and conditions reasonably specified by Parent but to be ~~necessary such~~ conditioned upon the Closing, which terms and conditions (other than the condition that the ~~Required Information does~~ Closing is consummated) shall be amended or waived as directed by Parent (collectively, the "Debt Offers"); not making any changes to the terms of the Debt Offers, or waiving any of the conditions thereto, without the prior written consent of Parent; preparing appropriate documentation (including offers to purchase and consent solicitation statements, related letters of transmittal, and other related documents) relating to any Debt Offers, with the assistance of Parent, and amending or supplementing any such documentation if the Company, any of its Subsidiaries or Parent shall determine that such amendment or supplement is required so that such documentation 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 ~~made~~ therein, in ~~the~~ light of the circumstances under which they were made, not ~~misleading~~misleading (and notifying Parent of any event or condition giving rise to such determination); providing Parent and its legal counsel a reasonable opportunity to review and have their respective comments incorporated into any documentation related to any Debt Offer; entering into appropriate supplemental indentures with respect to the amendments to the indentures contemplated by the Debt Offers and providing such other documentation, including opinions and certificates, as may be required in connection therewith (provided that no such supplemental indenture shall become operative until all conditions to the applicable Debt Offer have been satisfied or waived); engaging one or more dealer managers, information agents, depositaries and other agents, as selected by Parent and reasonably acceptable to the Company, and entering into customary documentation in connection therewith (including a customary dealer manager agreement); and complying with the requirements of Rule 14e-1 under the Exchange Act and any other applicable Law in connection with any Debt Offer; or, at the option of Parent, in lieu of any of the Debt Offers, effecting a redemption, covenant defeasance or a satisfaction and/or discharge of any Note Indebtedness pursuant to the terms of the applicable indenture (subject to and conditioned upon the Closing); provided, that Parent or the Surviving Corporation shall fund any such purchase pursuant to any Debt Offer or any redemption, defeasance or satisfaction and/or discharge. (iv) Parent shall, promptly upon request from the Company, reimburse the Company for all reasonable and documented out-of-pocket expenses and costs, including fees of outside accountants and outside legal counsel, to the extent incurred in connection with the Company’s or its Subsidiaries' cooperation under this Section 7.14. Parent and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company, the Company Related Parties and their respective Affiliates and its and their respective representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the Financing, any actions taken pursuant to this Section 7.14, and any information utilized in connection therewith, except with respect to any losses, damages, claims, costs or expenses to the extent resulting from or by reason of information provided by or at the direction of the Company, the Company Related Parties or any of their respective Affiliates or to the extent that such 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 Related Parties or their respective Affiliates.

Appears in 1 contract

Sources: Merger Agreement (Cpi International, Inc.)

Financing Cooperation. (a) ~~For purposes of this Section 6.10~~Parent expressly acknowledges and agrees that neither the availability, the ~~term “Financing” shall include any Permanent Financing (as defined in~~ terms nor the obtaining of the Financing ~~Letter), whether for debt, equity~~ or ~~otherwise. Prior~~ any other financing is in any manner a condition to the ~~Closing~~Merger, ~~Seller~~ the Closing or the obligations of Parent to consummate the transactions contemplated hereby, and reaffirms its obligation to consummate the Merger, the Closing and the transactions contemplated hereby, irrespective and independently of the availability of the Financing or any other financing. (b) The Company shall, and shall cause the Company Subsidiaries to, use its and their reasonable best efforts to, and shall use its reasonable best efforts to cause ~~each of~~ its ~~Affiliates~~ and their respective Representatives to, ~~use reasonable best efforts to~~ provide ~~to Buyer such~~ customary cooperation and customary financial information, in each case that is reasonably requested by ~~Buyer and reasonably required~~ Parent upon reasonable prior written notice in connection with any financing obtained or to be obtained by Parent for the ~~Financing~~ purpose of financing the Merger or any transaction undertaken in connection therewith (the ~~Alternate~~ “Financing”), including ~~(to the extent reasonably requested and reasonably required):~~ by (i) ~~participating in a customary and reasonable number of meetings~~furnishing, ~~presentations~~or causing to be furnished, ~~due diligence sessions, drafting sessions, road shows and sessions with rating agencies;~~ to Parent (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered or otherwise) and similar documents for the Financing, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii) as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer with (xA) audited consolidated balance sheets ~~for the Business as at December 31, 2011~~ and ~~2012, and (y) audited~~ related consolidated statements of ~~income~~ operations, comprehensive loss, stockholders’ equity and cash flows for the ~~Business~~ Company for each of the three ~~(3)~~ most recently completed fiscal years of the Company ended ~~December 31~~at least 60 days prior to the Closing Date, ~~2012~~ prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year, and (zB) ~~within forty~~unaudited condensed consolidated balance sheets and related condensed consolidated statements of operations, comprehensive loss, stockholders’ equity and cash flows (in each case, subject to normal year-~~five~~ end adjustments and absence of footnotes) for each subsequent fiscal quarter ended on a date that is at least 40 days prior to the Closing Date; provided that the financial statements required to be delivered pursuant to this clause (45i) ~~days~~ shall be deemed to have been delivered on the date on which such items have been publicly filed with, and made available on the website of, the SEC or made publicly available on the website of any national securities exchange, and (ii) using reasonable best efforts to cause the Company’s and the Company Subsidiaries’ independent accountants, as reasonably requested by ▇▇▇▇▇▇, to (A) consent to the use of their audit reports on the financial statements of the end of the relevant fiscal quarter, unaudited interim financial statements for each fiscal quarter ending after January 1, 2013 (collectively, the “Carve-Out Financials”); (iv) in addition to the information required pursuant to clause (iii), above, as promptly as reasonably practical, furnishing Buyer Company and the ~~other parties~~ Company Subsidiaries in any materials relating to the Financing ~~Letter with financial and other information regarding the Business and the Assets as may be reasonably requested by Buyer (including~~ or in connection with ~~Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of~~ any filings made with the ~~type required by Regulation S-X and Regulation S-K of~~ SEC or pursuant to the Securities Act ~~of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt~~ or ~~equity securities contemplated by the Financing, or as otherwise reasonably required~~ Exchange Act in connection with the Financing, ~~or as otherwise necessary in order to assist in receiving~~ (B) provide any customary “~~comfort~~comfort letters” (including ~~“negative assurance” comfort~~drafts thereof that such accountants are prepared to issue at the time of pricing and at closing of any offering or placement of the Financing) ~~from independent accountants~~ necessary and reasonably requested in writing by Parent in connection with ~~the offering(s)~~ any debt capital markets transaction comprising a part of debt or equity securities contemplated by the Financing (all such information in clause (iii) and this clause (iv), including the Carve-Out Financials, the “Required Information”); (v) providing information relating to the Business that is reasonably available to it to assist in the preparation of any credit agreements, indentures, 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 Buyer; (vi) furnishing Buyer and their Financing sources as promptly as practicable all financial information required to be delivered pursuant to the Financing Letter and monthly financial statements for the Business (to the extent prepared in the ordinary course of business); (vii) assisting Buyer to obtain waivers, consents, estoppels and approvals from other parties to Contracts, material Leases and Easements, and Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in its efforts to obtain accountants’ comfort Letter, consents, legal opinions, surveys, appraisals, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Financing, ~~as reasonably requested by Buyer~~and (C) participate in a reasonable number of customary due diligence sessions; ~~provided~~ provided, however, that (A1) ~~nothing herein shall require~~ no such cooperation shall be required to the extent it would (I) unreasonably interfere with the conduct of the Company’s or any Company Subsidiary’s business, (II) require ~~Seller~~ the Company or any of ~~its Affiliates~~ the Company Subsidiaries to ~~waive~~ incur any fees, expenses or other liability or to 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, (III) be reasonably expected to cause any Representative of the Company or any Company Subsidiary to incur any personal liability, (IV) require the Company or any Company Subsidiary to waive, breach or amend any terms of this Agreement, or agree to any change or modification of any other existing agreement or other documentation in connection therewith that would be effective prior to the Effective Time, (V) require the Company, any Company Subsidiary or any of their respective Representatives to provide any information that is prohibited or restricted by applicable Law or is legally privileged (provided, however, that the Company shall use its reasonable best efforts to make appropriate substitute arrangements to permit reasonable disclosure not in violation of Law or to allow for such access or disclosure to the maximum extent that does not result in a loss or waiver of such legal privilege), (VI) require the Company, any Company Subsidiary 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 any Company Subsidiary, any applicable Laws, or any Contracts of the Company or any Company Subsidiary, or (VII) require the Company, any Company Subsidiary or any of their respective Representatives to produce any financial information regarding the Company and the Company Subsidiaries that is not readily available or within the Company’s possession or to prepare or produce any projections or pro forma financial statements and (2) the Company, the Company Subsidiaries and their respective Representatives shall not be required to execute any credit or security documentation or any other definitive agreement (other than customary authorization and representation letters in connection with the Financing), adopt any resolution or otherwise take any corporate or similar action or incur any ~~Liabilities, pay~~ obligation or liability in connection with the Financing or to approve or authorize the Financing (including the documentation or instruments pursuant to which the Financing is obtained) or provide any ~~fees, reimburse any expenses~~indemnity, in each ~~case, with respect to the Financing~~case of this clause (2), prior to the ~~Closing for which it has~~ Effective Time, and shall not ~~received prior reimbursement~~ be required to deliver or cause to be delivered any opinion of counsel or solvency certificate in connection with such cooperation. 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 manner that is reasonable and customary and not intended or reasonably likely to harm, disparage or otherwise adversely affect the Company or any of the Company Subsidiaries or the reputation or goodwill of the Company or any of the Company Subsidiaries. (c) Parent shall indemnify and hold harmless the Company, the Company Subsidiaries, and their respective Representatives from and against any claims, damages, injuries, judgments, awards, penalties, fines, costs, settlement payments, expenses, liabilities or losses suffered or incurred by them based on, arising out of, relating to or in connection with, in whole or in part, the Financing or their cooperation therewith and any information utilized in connection therewith, except in the event such claims, damages, injuries, judgments, awards, penalties, fines, costs, settlement payments, expenses, liabilities or losses arise out of or result from (i) the willful misconduct, gross negligence or bad faith of the Company and the Company Subsidiaries or any of their respective Representatives, (ii) the material breach by the Company of its obligations under this Agreement or (iii) any intentional misstatement or omission in information provided in writing hereunder by or on behalf of ~~Buyer~~the Company, ~~or would cause Seller~~ the Company Subsidiaries or any of its Affiliates to breach this Agreement or become unable to satisfy a condition to the Closing, (B) nothing herein shall require such cooperation from Seller or its Affiliates to the extent it would unreasonably interfere their respective Representatives for use in connection with the ~~ongoing operations~~ Financing (clauses (i) through (iii), collectively, the “Indemnity Exceptions”). Parent shall, promptly upon request by the Company, reimburse the Company and the Company Subsidiaries for all reasonable and documented out-of-pocket costs actually incurred by the Company and the Company Subsidiaries (including those of ~~Seller~~ their respective Representatives and reasonable and documented attorneys’ fees) in connection with taking action required or ~~its Affiliates and (C) there shall be no action, Liability or obligation of Seller or its Affiliates under any certificate, agreement, arrangement, document or instrument relating~~ requested by Parent pursuant to ~~the Financing. Notwithstanding anything to the contrary in~~ this Section ~~6.10~~7.8, neither Seller nor its Affiliates shall be in breach of the covenant set forth in this Section 6.10 if it has acted in good faith to comply with the cooperation and assistance set forth herein. (b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, other than those arising out of or resulting from the ~~arrangement of the Financing, any other financing and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement~~Indemnity Exceptions. (c) Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii) and (iv) of Section 6.10(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 made therein, in the light of the circumstances under which they were made, not misleading.

Appears in 1 contract

Sources: Merger Agreement (Exact Sciences Corp)

Financing Cooperation. (a) ~~For purposes of this Section 6.10, the term “Financing” shall include any Permanent Financing (as defined in the Financing Letter), whether for debt, equity or otherwise. Prior to the Closing,~~ Seller shall, between the date hereof and ~~shall~~ the Closing Date, use its reasonable best efforts to (and to cause ~~each of~~ its Affiliates and ~~Representatives to,~~ their respective personnel and advisors to use their reasonable best efforts to to), as promptly as reasonably practicable, cooperate with and provide such assistance to Buyer ~~such cooperation~~ as is reasonably requested by Buyer in Buyer’s efforts to obtain (i) the Debt Financing and the NER Financing on the terms contemplated herein and in the respective Commitment Letters and (ii) additional equity financing through the admission of new investors to Parent as limited partners on the terms contemplated under the Limited Partnership Agreement (“Additional Equity Financing”). (b) The cooperation and assistance contemplated by Section 5.24(a) shall comprise the following: (i) providing information, including adjustment figures, reasonably ~~required~~ requested in connection with ~~the Financing or the Alternate Financing, including~~ (~~to the extent reasonably requested and reasonably required): (i~~A) ~~participating in a~~ any customary and reasonable number of meetings, presentations, due diligence sessions, drafting sessions, road shows and sessions with rating agencies; (ii) assisting with the preparation of materials for rating agency presentations, offering documents, ~~private placement memoranda,~~ bank information ~~memoranda, prospectuses (registered or otherwise)~~ memoranda and similar ~~documents for the Financing~~documents, including execution and delivery of customary representation letters in connection with an audit of the Business and auditors comfort letter; (iii) as promptly as reasonably practical, and in no event later than March 31, 2013, furnishing Buyer with which include (x) all audited ~~balance sheets for the Business as at December 31, 2011 and 2012, and (y) audited~~ annual statutory financial statements of ~~income and cash flows for~~ the ~~Business~~ Company for the three (3) most recently completed fiscal years ~~ended December 31, 2012~~ of the Company that have been filed with the Nebraska Department of Insurance prior to the Closing Date and (zy) ~~within forty-five~~ unaudited interim statutory financial statements of the Company that have been filed with the Nebraska Department of Insurance prior to the Closing Date for any fiscal quarter ended after the date of the most recent financial statements delivered pursuant to clause (45x), (B) ~~days~~ rating agency presentations, by providing financial and other factual data related to the Company Business and (C) the Reference Balance Sheet, updated as of the end of the ~~relevant fiscal quarter, unaudited interim financial statements for each~~ most recent fiscal quarter ~~ending after January 1, 2013 (collectively,~~ of the ~~“Carve-Out Financials”); (iv) in addition~~ Company ended at least 60 days prior to the ~~information required pursuant to clause~~ Closing Date (~~iii)~~or, ~~above~~if the most recently completed fiscal quarter is the end of a fiscal year of the Company, ~~as promptly as reasonably practical, furnishing Buyer and the other parties~~ ended at least 120 days prior to the ~~Financing Letter with financial~~ Closing Date); (ii) executing and delivering (or using reasonable best efforts to obtain from its advisors) customary certificates or other ~~information regarding the Business~~ similar documents and the Assets as may be reasonably requested by Buyer (including in connection with Buyer’s preparation of pro forma financial statements), including unaudited interim financial statements, financial data, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K of the Securities Act of 1933 for a registered public offering, and of type and form customarily included in private placements under Rule 144A, to consummate the offering(s) of debt or equity securities 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 “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt or equity securities contemplated by the Financing (all such information in clause (iii) and this clause (iv), including the Carve-Out Financials, the “Required Information”); (v) providing information instruments relating to the Business that is reasonably available to it to assist in the preparation of any credit agreements, indentures, 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 NER Financing as may be reasonably requested by Buyer; ; (iii) subject to receipt of assurances of confidentiality in form and substance reasonably satisfactory to Seller, providing authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders; (iv) providing actuarial and financial information requested by Hannover Life Reassurance Company of America (all such information described in this Section 5.24(b)(i) and (v) together with all information provided to the Financing Sources prior to the date hereof, collectively, the “Required Financial Information”); (vi) ~~furnishing~~ subject to receipt of assurances of confidentiality in form and substance reasonably satisfactory to Seller, arranging for the participation of appropriate officers of Seller in a reasonable number of management and other meetings (including customary one-on-one meetings with the lead arrangers for the Debt Financing and with potential investors for the Additional Equity Financing), presentations, due diligence sessions and sessions with rating agencies on reasonable advance notice; (vii) filing all required applications and requests for approval with all applicable Governmental Entities required in connection with the NER Financing (which will be prepared by Buyer and ~~their~~ whose form and substance will be subject to the approval of Seller, which shall not be unreasonably withheld, conditioned or delayed); and (viii) taking such corporate actions as shall be reasonably requested of Seller or the Company by Buyer to permit the consummation of the Financing ~~sources as promptly as practicable all financial information required~~ or Additional Equity Financing to permit the proceeds thereof to be ~~delivered pursuant~~ made available at the Closing and permit the Closing of the NER Financing to occur immediately after the Closing, provided, however, that Seller and, until the Closing occurs, the Company shall not (1) have any Liability or any obligation under any agreement or document related to the Financing ~~Letter and monthly financial statements for~~ or any Additional Equity Financing or (2) be required to incur any Liability in connection with the ~~Business (~~Financing or Additional Equity Financing other than out-of-pocket expenses incurred in connection with its compliance with this Section 5.24, which shall promptly be reimbursed by Buyer. Without limitation to the ~~extent prepared in the ordinary course of business); (vii) assisting Buyer to obtain waivers~~foregoing, ~~consents, estoppels and approvals from other parties to Contracts, material Leases and Easements~~Seller shall provide, and ~~Encumbrances to which the Assets or the Business are bound; and (viii) cooperating with Buyer in~~ shall use its commercially reasonable efforts to ~~obtain accountants’ comfort Letter~~cause each of its and the Company’s Representatives, ~~consents~~including legal, ~~legal opinions~~tax, ~~surveys~~regulatory and accounting to provide, ~~appraisals, engineering reports, environmental~~ all other information and ~~other inspections, title insurance and other documentation and items relating to the Financing, as~~ cooperation reasonably requested by the Financing Sources or Buyer~~; provided that (A) nothing herein shall require such cooperation to the extent it would require~~ . Neither Seller or nor any of its Affiliates shall have any obligation to ~~waive~~ provide any representations, warranties, assurances or ~~amend~~ opinions to any ~~terms of this Agreement, incur any Liabilities, pay any fees, reimburse any expenses, in each case, with respect~~ Person as to the ~~Financing~~accuracy or completeness of any information made available to any Financing Source, ~~prior~~ potential lender, equity or other investors, rating agencies, Governmental Entity or any other Person, and, except for the rights of the Buyer Indemnified Persons pursuant to Section 7.2(a)(i) (subject to the Closing for which it has not received prior reimbursement by or on behalf of Buyer, or would cause Seller or any of its Affiliates to breach this Agreement or become unable to satisfy a condition to the Closing, (B) nothing herein shall require such cooperation from Seller or its Affiliates to the extent it would unreasonably interfere with the ongoing operations of Seller or its Affiliates and (C) there shall be no action, Liability or obligation of Seller or its Affiliates under any certificate, agreement, arrangement, document or instrument relating to the Financing. Notwithstanding anything to the contrary in this Section 6.10, neither Seller nor its Affiliates shall be in breach of the covenant limitations set forth in this Agreement), Seller shall have no Liability or obligation with respect to any information provided pursuant to this Section ~~6.10 if it has acted~~ 5.24 or otherwise in ~~good faith to comply~~ connection with the ~~cooperation and assistance set forth herein. (b) Buyer shall indemnify the Seller Indemnitees from, against and in respect of~~ Financing or any ~~Losses imposed on, sustained, incurred or suffered by, or asserted against, any of them, directly or indirectly relating to, arising out of or resulting from the arrangement of the~~ Additional Financing~~, any other financing and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable Legal Requirement~~. (c) ~~Seller will use its reasonable best efforts to update Required Information provided to Buyer pursuant to clauses (iii~~Notwithstanding Sections 5.24(a) and ~~(iv) of Section 6.10(a) as may be necessary such~~ 5.24(b), Buyer acknowledges and agrees that the ~~Required Information does not contain~~ Company shall not, prior to the Closing, be obligated to incur any ~~untrue statement of material fact~~ Liability or ~~omit~~ commitment to ~~state~~ any ~~material fact necessary~~ third-party under or in ~~order to make~~ connection with the ~~statements made therein~~Financing or any Additional Equity Financing. Buyer shall indemnify and hold harmless Seller and the Company and their respective officers, directors, employees, Affiliates and agents from and against any and all Liabilities suffered or incurred by them under or in connection with the ~~light of the circumstances under which they were made, not misleading~~Financing or any Additional Equity Financing.

Appears in 1 contract

Sources: Stock Purchase Agreement (Allstate Corp)

Common use of Financing Cooperation Clause in Contracts