Common use of Liability Management Clause in Contracts

Liability Management. (a) The Company will provide Parent reasonable assistance in connection with (i) the repayment, redemption or satisfaction and discharge of any Indebtedness of the Company or any Company Subsidiary, including the Company Notes, Company IRBs or Company Credit Agreement, as applicable (a “Debt Payoff”), and (ii) any tender offers, exchange offers or consent solicitations (each, a “Debt Offer”) to holders of Company Notes; provided that: (i) if and to the extent requested by Parent prior to the Effective Time, the Company or a Subsidiary of the Company will, subject to the terms of this Section 6.12, commence a Debt Offer on terms determined by Parent after reasonable consultation with the Company; provided that neither the Company nor any Company Subsidiary will have any obligation to make any Debt Payoff; (ii) subject to the Company’s obligations hereunder, the Company will have a reasonable opportunity to review and comment on all offers to purchase, solicitation statements or any other materials to be transmitted to debt holders, or otherwise used in connection with any Debt Payoff or Debt Offer; (iii) at the time of commencement of any such Debt Payoff or Debt Offer, Parent and Merger Sub have performed or complied in all material respects with all of their agreements and covenants required by this Agreement to be performed on or prior to the time that the Debt Payoff or Debt Offer, as applicable, is to be commenced; (iv) the Company will retain, as may reasonably be required and at Parent’s expense, the financial institutions and other parties reasonably requested by Parent and reasonably acceptable to the Company to act as dealer managers, information agents, solicitation agents, depositaries or other agents to provide assistance in connection with any Debt Offers and the Company will enter into customary dealer manager agreements, consent solicitation agreements, information agent agreements, depositary agreements and other agreements in connection therewith; (v) notwithstanding anything in this Agreement to the contrary, in no event will the Company, any of its Subsidiaries, Parent or any of its Subsidiaries have any obligation to authorize, adopt or execute any supplemental indenture to the Company Notes Indenture or other agreement relating to a Debt Payoff or Debt Offer that would become effective prior to the Closing Date; (vi) any Debt Payoff or Debt Offer will be at the expense of Parent; (vii) the closing of any Debt Payoff or Debt Offer will be expressly conditioned on the Closing (unless any such Debt Payoff or Debt Offer is commenced after the Closing); and (viii) any Debt Payoff or Debt Offer will be conducted in all material respects in compliance with applicable Law. (b) The Company will reasonably cooperate with Parent in the preparation of the necessary and appropriate documentation in connection with any solicitation of and offers to holders of the Company Notes pursuant to the Debt Payoff or Debt Offers, including any customary offers to purchase, redemption notices, consent solicitation statements, offering memoranda, letters of transmittal and ancillary documents, including any amendment or supplements thereto, necessary for each Debt Payoff or Debt Offer and other related documents (collectively, the “Debt Offer Documents”). If at any time prior to the completion of the Debt Payoff or Debt Offers, any information in the Debt Offer Documents is discovered by the Company or Parent making it necessary to amend the Debt Offer Documents to ensure that the Debt Offer Documents do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, the Company will promptly notify Parent, and an appropriate amendment or supplement describing such information will be disseminated promptly to the holders of the Company Notes. (c) Notwithstanding any other provision of this Agreement, Parent will indemnify and hold harmless the Company and any Company Subsidiary and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses (including reasonable attorneys’ fees), interest, awards, judgments and penalties suffered or incurred in connection with any and all of the matters contemplated by this Section 6.12 (other than arising from a material misstatement or omission on the part of the Company or any Company Subsidiary), whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated. Parent will, promptly upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs (including reasonable attorneys’ fees) incurred by the Company and any Company Subsidiary in connection with this Section 6.12, whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated. (d) Notwithstanding anything in this Agreement to the contrary, (i) Parent acknowledges and agrees that the consummation of any Debt Payoffs or Debt Offers is not a condition to Closing under this Agreement, and (ii) the Company’s obligations in this Section 6.12 are subject to Parent’s written confirmation that, at the time of Parent’s request for assistance pursuant to Section 6.12(a), Parent’s representation in Section 5.5(a) remains true and correct and that Parent has, and will have, funds sufficient to satisfy any Debt Payoff or Debt Offer.