Financing Cooperation. Upon the request of Parent, the Company shall use its commercially reasonable efforts to provide reasonable cooperation in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall include, to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Metals Usa Holdings Corp.), Agreement and Plan of Merger (Reliance Steel & Aluminum Co)
Financing Cooperation. Upon (a) Prior to the request of ParentClosing, the Company shall use its commercially reasonable efforts to provide reasonable cooperation reasonably requested by Parent in connection with Parent’s efforts to arrange the arrangement and consummate consummation of any amendment to, or replacement or supplement of, Parent’s credit facilities third-party debt financing for the purpose of financing the transactions contemplated hereby (“Debt Financing”); provided that such requested cooperation does not unreasonably interfere with the ongoing operations or business of the Company or any Company Subsidiary), including: (i) participating in meetings, presentations, marketing sessions (including with ratings agencies) and due diligence sessions and promptly furnishing such reasonably available information (including financial information) as may be reasonably requested by Parent; (ii) assisting with the preparation of materials for presentations, memoranda and similar documents required in connection with such financing and participating in a reasonable number of customary meetings with potential financing sources and senior management; (iii) executing and delivering any definitive financing documents and certificates as may be reasonably requested by Parent (including, without limitation, a certificate of the Chief Financial Officer (or equivalent reasonably satisfactory to Parent) of the Company and its Subsidiaries. Such commercially any Company Subsidiary with respect to solvency matters) and otherwise facilitating the pledging of collateral and the providing of guarantees (including providing reasonable efforts shall include, and customary information required in connection with the pledging and identification of intellectual property to the extent reasonably specifically requested by Parent, commercially reasonable efforts to: ); (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financingiv) to the extent reasonably requested by the Parent and/or in writing at least ten (10) Business Days prior to the Financing Sources to assist in preparation due date therefor, furnishing all documentation and other information about the Company and the Company Subsidiaries that the potential financing sources have reasonably requested for compliance under applicable “know your customer” and anti-money-laundering rules and regulations; and (v) obtaining the release and termination of customary offering or information documents liens on Company and Company Subsidiary assets, provided that neither the Company nor any Company Subsidiary shall be required to be used for the completion of the Debt Financingan issuer or obligor with respect to such financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing or incur any obligation under any such Existing Credit Facilitiesdocuments or certificates that is effective, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness case, prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of . Nothing herein shall require the Company and its Subsidiaries, including with respect to provide such cooperation described in the foregoing sentence to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of extent it would require the Company or any of its Subsidiaries with respect Company Subsidiary to agree to pay any fees, reimburse any expenses or give any indemnities prior to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company Effective Time for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company which it is not reimbursed or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financingindemnified.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Procera Networks, Inc.), Agreement and Plan of Merger (Procera Networks, Inc.)
Financing Cooperation. Upon the request of Parent, the Company shall (a) Goldcorp agrees to use its commercially reasonable efforts to provide reasonable provide, and to cause each of its Subsidiaries and each of their respective Representatives to provide, such cooperation as may be reasonably requested by Newmont in connection with Parent’s efforts the borrowing or an issuance of debt by Newmont and/or any liability management transaction (including, without limitation, any exchange offers, consent solicitations or tender offers) with respect to arrange and consummate any amendment todebt existing on the date hereof of Goldcorp or its Subsidiaries (collectively, or replacement or supplement of, Parent’s credit facilities (a “Debt Financing”); provided that , including, without limitation to, upon reasonable notice: (i) provide assistance with any discussions of and/or furnish, as applicable, such cooperation does not unreasonably interfere business, financial statements, pro forma financials, projections, management discussion and analysis and other customary financial data and information (including diligence materials) reasonably required in connection with the ongoing operations any Debt Financing, (ii) direct their respective independent accountants to provide customary and reasonable assistance in connection with any Debt Financing, including in connection with providing customary comfort letters and consents, (iii) obtain customary payoff letters, releases of the Company liens and its Subsidiaries. Such commercially reasonable efforts shall include, to the extent other instruments of termination or discharge reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel Newmont in connection with the repayment of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company debt of Goldcorp and its Subsidiaries to (provided that the effectiveness of any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to such arrangements shall be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for contingent on the completion of the Arrangement) and (iv) authorize and facilitate discussions, meetings and other engagement by Newmont, its Subsidiaries or Affiliates with the current lenders, noteholders or other providers of existing indebtedness to Goldcorp or any of its Subsidiaries for the purpose of obtaining Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date including by necessary or appropriate waivers of the Existing Credit Facilities Confidentiality Agreement to permit such activities. Newmont shall reimburse Goldcorp for all reasonable out-of-pocket costs or expenses incurred by Goldcorp and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time its Subsidiaries in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything cooperation provided for in this Section 5.13 to the contrary notwithstanding, until extent the Effective Time occurs, neither information requested was not otherwise prepared or available in the Company nor any ordinary course of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financingbusiness.
Appears in 2 contracts
Samples: Arrangement Agreement (Goldcorp Inc), Arrangement Agreement (Newmont Mining Corp /De/)
Financing Cooperation. Upon (a) Prior to the request of ParentEffective Time, the Company shall, and shall cause its Subsidiaries to, and shall use its commercially reasonable efforts to provide reasonable cooperation in connection with Parent’s efforts to arrange cause its and consummate any amendment their Representatives to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall include, to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used customary cooperation and all customary financial and other information, in the preparation of a customary information package regarding the businesseach case, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent that is reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings new financing by Parent in connection with the SEC. Anything refinancing, replacement or repayment of any Indebtedness (the “Financing”), including cooperation with any customary due diligence process as reasonably requested by Parent or the providers of any such Financing and using commercially reasonable efforts to cause the Company’s independent accountants to provide any customary “comfort” letters (including customary “negative assurance” comfort for any applicable Financing) in this Section 5.13 to the contrary notwithstandingconnection with any such Financing; provided, until the Effective Time occurs, that neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, Subsidiaries shall be required to (i) be required become an issuer or an obligor with respect to pay any commitment or other similar feethe Financing prior to the Effective Time, (ii) enter into cause any definitive agreement director, officer, member, partner, accountant, legal counsel, employee or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director Representative of the Company or any of its Subsidiaries with respect Subsidiary to take any action that would reasonably be expected to result in such Person incurring any personal liability, (iii) waive or amend any terms of this Agreement or (iv) incur any fees, expenses or other liabilities prior to the Debt FinancingEffective Time for which it is not previously or simultaneously reimbursed and indemnified. Parent shall promptly, upon request by The Company hereby consents to the reasonable use of the Company, reimburse the Company for all reasonable ’s and documented out of pocket costs (including reasonable attorneysits Subsidiaries’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them logos solely in connection with the arrangement marketing of the Debt Financing and any information Financing; provided that such logos are used solely in connection therewith (other than information provided by a manner that is not intended to or reasonably likely to harm or disparage the Company or any its Subsidiaries or the reputation or goodwill of the Company or its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Evoqua Water Technologies Corp.), Agreement and Plan of Merger (Xylem Inc.)
Financing Cooperation. Upon the request of Parent(a) The Company shall, the Company and shall cause its subsidiaries, and shall use its commercially reasonable efforts to cause its and their respective Representatives to, use its and their respective reasonable efforts to provide reasonable such customary cooperation as may be reasonably requested by Parent or Merger Sub or their respective Affiliates in connection with Parent’s efforts to arrange and consummate any amendment toFinancing made, or replacement to be made, by Parent or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations any of the Company its subsidiaries and its Subsidiaries. Such commercially reasonable efforts shall include, any SEC filing related to the extent reasonably requested Financing to be made by Parent, commercially including by: (i) using reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable advance written notice, appropriate personnel of provide reasonable contact, including with respect to customary due diligence, among the Company Company’s and its Subsidiariessubsidiaries’ senior management and appropriate senior management, representatives, advisors and the Financing Sources; (bii) provide, as promptly as reasonably practicable, providing such customary historical financial and other customary pertinent information relating with respect to the Company and its Subsidiaries to subsidiaries (including, in any financing institutions contemplated to arrange and/or provide all event, the Required Financial Information) as may be reasonably requested or reasonably required by Parent for use in connection with the Financing and designating, upon request, whether any portion of the Debt Financing (the “Financing Sources”) (including such information is suitable to be used in the preparation of a customary made available to lenders and other investors who do not wish to receive material non-public information package regarding the business, operations, financial condition, projections and prospects of with respect to the Company and its Subsidiaries subsidiaries or their respective securities; (iii) providing information regarding the Company and its subsidiaries reasonably necessary or customarily required to assist Parent in preparing pro forma financial statements if Parent reasonably determines such pro forma financial statements are necessary, required or customary for financings similar in connection with the Financing or any other SEC filing related to the Debt Financing) Financing to the extent reasonably requested be made by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company need only reasonably assist in the preparation thereof, but shall have no obligation not be required to pay or discharge independently prepare any such indebtedness prior separate pro forma financial statements and shall not be required to change its fiscal year); (iv) using commercially reasonable efforts to cause Ernst & Young LLP to provide reasonable and customary assistance to Parent, including by participating in accounting due diligence sessions, obtaining the Effective Time)consent of, (d) cooperate with respect to matters relating to pledges of collateral to take effect at and facilitating the Effective Time in connection with such financingdelivery of, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters (including as to negative assurance) from, Ernst & Young LLP (including by providing customary management letters and consents requesting legal letters to obtain such consent) if necessary, desirable or customary for Parent’s use of the independent accountants financial statements of the Company and its Subsidiariessubsidiaries in any marketing or offering materials to be used in connection with the Financing; (v) taking all organizational actions and executing and delivering any definitive financing agreements, any customary certificates or other customary documents or instruments relating to guarantees or other matters related to the Financing, subject to the occurrence of the Effective Time, reasonably requested by Parent to permit the Financing and repayment or refinancing of indebtedness in connection with the Merger; (vi) furnishing reasonably promptly (and in any event at least three (3) Business Days prior to the Closing Date) all documentation and other information reasonably requested in writing at least ten (10) Business Days prior to the Closing Date required by any Governmental Entity in connection with the Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S. Patriot Act and the Beneficial Ownership Regulation (to the extent applicable); (vii) obtaining customary payoff letters, lien releases and instruments of discharge in respect of the Company Credit Agreement; (viii) reasonably cooperating with legal counsel to Parent and Merger Sub in connection with any legal opinions that such counsel may be required to deliver in connection with any Financing; and (x) delivering conditional notices of prepayment within the time period required by the Company Credit Agreement (or such shorter period as may be acceptable to the agent or the lenders thereunder) and issuing conditional notices of redemption with respect to the auditor Company Notes, as reasonably requested by Parent. The Company hereby consents to the use of the trademarks, service marks and logos of the Company and its subsidiaries in connection with the arrangement of the Financing so long as such trademarks, service marks and logos are used in a manner that is not intended to harm or reasonably likely to harm or disparage the Company or any filings with of its subsidiaries or the SECreputation or goodwill of the Company or any its subsidiaries. Anything in this Section 5.13 Notwithstanding the foregoing, nothing herein shall require such cooperation to the contrary notwithstandingextent it would (i) unreasonably disrupt the ordinary conduct of the business or operations of the Company or its subsidiaries, until (ii) require the Company or its subsidiaries to agree to pay any fees, reimburse any expenses or otherwise incur any actual liability or give any indemnities in each case prior to the Effective Time occursunless Parent reimburses or is required to reimburse or indemnify the Company or its subsidiaries pursuant to this Agreement; provided, however, that, with respect to any series of Company Notes or the Company Credit Agreement, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, subsidiaries shall (i) be required to pay make any commitment payments of outstanding principal, accrued and unpaid interest and/or applicable premiums or consent payments (other similar fee, (iithan with respect to scheduled payments of principal and interest) enter into any definitive agreement unless Parent has irrevocably deposited funds sufficient to cover such amounts with the applicable trustee or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financingagent, (iii) unless promptly reimbursed by Parentrequire the Company or its subsidiaries to take any action that would reasonably be expected, be required in the reasonable judgment of the Company, to incur conflict with, or result in any violation or breach of, any applicable Laws or obligations of confidentiality (not created in contemplation hereof) binding on the Company or its subsidiaries, (iv) require the Company or its subsidiaries to (A) subject to the requirements of Section 6.15, pass resolutions or consents, approve or authorize the execution of, or execute any document, agreement, certificate or instrument or take any other expenses corporate action with respect to the Financing that is not contingent on the Closing or that would be effective prior to the Effective Time or (B) provide or cause its legal counsel to provide any legal opinions that are not required in connection with the Debt Financing transactions contemplated by Section 6.15, (v) require the Company to prepare separate financial statements or any new compensation information or (ivvi) be required to take any action in his/her capacity as a director of require the Company or any subsidiary thereof to incur additional indebtedness prior to the Closing. Notwithstanding anything to the contrary contained in this Agreement (including this Section 6.14), nothing in this Agreement shall require the Company to cause the delivery of its Subsidiaries (A) any reliance letter, any certificate as to solvency or any other certificate necessary for the Financing other than as contemplated by clause (iii) of the first sentence in this Section 6.14(a), (B) any financial information in a form not customarily prepared by the Company with respect to any period or (C) any financial information with respect to a month of fiscal period that has not yet ended or has ended less than forty-five (45) days prior to the Debt Financingdate of such request. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable acknowledges and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company agrees that any access or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information contemplated to be provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives subsidiaries pursuant to this Section 5.13. Parent and Merger Sub shall keep 6.14 shall, to the Company informed on a reasonably current basis extent such information constitutes material non-public information of the status Company, only be provided to other Persons, including any Financing Sources, if such other Person affirmatively agrees to maintain the confidentiality of its efforts such information pursuant to arrange a customary confidentiality agreement and consummate to comply with all federal and state securities laws and regulations applicable to such information, except with respect to such information that would be required to be disclosed in respect of an offering of securities in connection with the Financing to ensure that the offering materials in respect of such securities would not contain any Debt Financinguntrue statement of a material fact or omit a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Advanced Disposal Services, Inc.), Agreement and Plan of Merger (Waste Management Inc)
Financing Cooperation. Upon the request of Parent, the Company (a) Parent and Purchaser shall use its commercially their respective reasonable best efforts to provide cause to be taken all actions necessary to obtain the Financing on the terms and subject to the conditions described in the Commitment Letter, including using their respective reasonable cooperation best efforts to: (i) maintain in connection effect the Commitment Letter and negotiate and enter into definitive agreements with Parent’s efforts respect to arrange the Financing (A) on the terms and subject to the conditions reflected in the Commitment Letter or (B) on other terms that are acceptable to Parent and Purchaser and would not materially and adversely impact the ability of Parent and Purchaser to consummate the transactions contemplated by this Agreement without delay; (ii) comply without delay with all covenants, and satisfy without delay all conditions, required to be complied with or satisfied by Parent or Purchaser in the Commitment Letter and in such definitive agreements; (iii) cause the Financing to be consummated at such time or from time to time as is necessary for Parent and Purchaser to satisfy their respective obligations under this Agreement; (iv) pay any amendment to, and all commitment or replacement other fees in a timely manner that become payable by Parent or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with Purchaser under the ongoing operations Commitment Letter following the date of the Company and its Subsidiaries. Such commercially reasonable efforts shall includethis Agreement, to the extent that the failure to pay such fees would be reasonably requested by Parent, commercially reasonable efforts to: (a) make available expected to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel adversely impact the availability of the Company financing thereunder; provided, however, notwithstanding anything to the contrary contained in this Agreement, Parent and its SubsidiariesPurchaser shall not be required to, (b) provideand Parent and Purchaser shall not be required to cause any other person to, commence, participate in, pursue or defend any Action against or involving any of the persons that have committed to provide any portion of, or otherwise with respect to, the Financing. In the event any portion of the Financing becomes or would reasonably be expect to become unavailable on the terms and conditions contemplated in the Commitment Letter for any reason or the Commitment Letter shall be terminated or modified in a manner materially adverse to Parent or Purchaser for any reason, Parent and Purchaser shall promptly so notify the Company, and shall use their respective reasonable best efforts to obtain, as promptly as reasonably practicable, information relating and in no event later than the Outside Date, from the same and/or alternative financing sources alternative financing on terms not materially less favorable to Parent and Purchaser than the terms of the Financing in an amount equal to the Company lesser of (i) an amount sufficient to consummate the Offer and its Subsidiaries the Merger and the other Transactions contemplated by this Agreement (after taking into consideration the funds otherwise available to Parent and Purchaser), and (ii) the amount of financing that was contemplated by the Commitment Letter on the date of this Agreement. In the event any alternative or substitute financing institutions contemplated is obtained by Parent and Purchaser in accordance with the terms of this Section 7.17(a) (the “Alternative Financing”), references in this Agreement to arrange and/or provide all or any portion the Financing (including, for avoidance of doubt, the Debt references in this Section 7.17 and Section 1.1, but excluding references in Section 5.4 shall be deemed to refer to the Alternative Financing, and if a new financing commitment letter is entered into in connection with such Alternative Financing (the “Financing SourcesNew Commitment Letter”), references in this Agreement to the Commitment Letter (including, for avoidance of doubt, the references in this Section 7.17, but excluding the references in Section 5.4 and clause (ii) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar preceding sentence) shall be deemed to refer to the Debt Financing) to New Commitment Letter. Parent and Purchaser will provide the extent reasonably requested Company with a copy of any New Commitment Letter obtained by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time Purchaser in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of an Alternative Financing as promptly as practicable following the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financingexecution thereof.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Microsemi Corp), Agreement and Plan of Merger (Vitesse Semiconductor Corp)
Financing Cooperation. Upon (a) From the request date hereof until the earlier of Parentthe Closing or the earlier termination of this Agreement in accordance with Article VII, the Company shall use its commercially reasonable efforts to provide reasonable to Parent, and to cause its Representatives to provide or cause to be provided to Parent, on a reasonably timely basis and at Parent’s sole expense, customary cooperation reasonably requested by Parent in connection with the arrangement and consummation of Parent’s efforts to arrange and consummate any amendment toDebt Financing (provided that, or replacement or supplement ofin all cases, Parent’s credit facilities (“Debt Financing”); provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts , is customary for a senior secured credit facility financing and does not delay or postpone the Closing), including (i) providing to Parent and its Representatives pertinent financial and other information regarding the Company as shall include, be reasonably available to the extent Company and reasonably be requested by Parent, including providing (x) historical financial information regarding the Company reasonably requested by Parent and reasonably available to Company in order for Parent to prepare the pro forma financial information required in Parent’s debt commitment letter (if any) related to Parent’s Debt Financing, provided, that in no event shall the Company or its Representatives be required to provide pro forma financial statements or projections (provided that the Company agrees to use commercially reasonable efforts to: to cooperate with Parent in its preparation of such materials), (ay) make available information related to the Company required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (z) customary information necessary to assist Parent in completing customary disclosure schedules required by Parent’s Debt Financing; (ii) participating (and using commercially reasonable efforts to cause representatives of senior management to participate) in a reasonable and limited number of requested meetings (including customary one-on-one meetings that are requested in advance with the parties acting as lead arrangers or agents for, and prospective lenderslenders and purchasers of, on a Parent’s Debt Financing and representatives of the Company’s senior management), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with Parent’s Debt Financing, and otherwise cooperating with the marketing efforts for any of Parent’s Debt Financing (including assisting with the timely preparation by Parent of materials for offering documents, bank information memoranda and similar documents); (iii) cooperating with Parent to obtain customary and reasonable basis corporate and upon reasonable noticefacilities ratings; (iv) providing executed customary authorization letters to the Debt Financing Sources authorizing the distribution of information to prospective lenders or investors and containing a representation to the Debt Financing Sources that the public side versions of such documents, appropriate personnel of if any, do not include material non-public information about the Company or its Subsidiaries or securities and its Subsidiariesexecute ratings agency engagement letters as required in connection with Parent’s Debt Financing (provided that the Company shall not be required to pay any cost or expenses relating to rating agency engagement letters); (v) execution and delivery of customary definitive financing documentation for Parent’s Debt Financing, (b) provideincluding pledge and security documents, as promptly as guarantees, a customary closing certificate with respect to solvency matters, providing reasonable and customary information reasonably practicable, information relating available to the Company and its Subsidiaries required in connection with the pledging and identification of bank accounts, insurance and intellectual property to any financing institutions contemplated the extent required to arrange and/or provide all or any portion of the close Parent’s Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects delivering stock certificates for certificated securities of the Company and its Subsidiaries customary for financings (with transfer powers executed in blank); (vi) taking all corporate or similar administrative or organizational actions reasonably necessary to permit the consummation of Parent’s Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date and causing the direct borrowing or incurrence of all of the Existing Credit Facilities and releasing Liens and the pledges proceeds of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the ’s Debt Financing or (iv) be required to take any action in his/her capacity as a director of by the Company Surviving Corporation or any of its Subsidiaries concurrently with or immediately following the Effective Time; and (vii) obtaining a customary payoff letter with respect to the Debt Financing. Parent shall promptlyCompany Existing Credit Facility and, upon request by subject to repayment of such Indebtedness on the CompanyClosing Date, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financingcollateral releases.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Thoma Bravo Fund Xii, L.P.), Agreement and Plan of Merger (Imprivata Inc)
Financing Cooperation. Upon (a) Prior to the request of ParentClosing, the Company shall use its commercially if requested by Buyer upon reasonable efforts to provide reasonable cooperation in connection with Parent’s efforts to arrange advance notice and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that so long as such cooperation does not unreasonably interfere with the ongoing operations of the Company Acquired Companies, Seller shall use its reasonable best efforts and its Subsidiaries. Such commercially shall cause the Acquired Companies, and their respective Representatives to use their reasonable efforts shall includebest efforts, to the extent provide all cooperation and assistance reasonably requested by ParentBuyer to assist Buyer in connection with Buyer’s efforts to obtain debt financing in connection with the arrangement, commercially reasonable efforts to: (a) make available syndication, marketing and consummation of any debt financing the proceeds of which are to prospective lenders, on be used to fund at the Closing a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing Purchase Price or other amounts payable by Buyer pursuant to this Agreement (the “Financing SourcesDebt Financing”), including in connection with the arrangement, syndication, marketing and consummation of the Debt Financing. Such actions may include: (i) arranging for senior management of the Acquired Companies participation in a reasonable number of meetings with debt financing sources, (including information ii) making officers and employees reasonably available for a reasonable number of meetings, conference calls, presentations, due diligence sessions, road shows and drafting sessions and to be used assist in the preparation of a customary information package regarding Financing Materials, (iii) assisting Buyer with the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information definitive financing documents to be used for the completion of the Debt Financing, (civ) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payofffurnishing Buyer, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens its Affiliates and the pledges Debt Financing sources with copies of collateral securing such Existing Credit Facilitiesfinancial and operating data customarily required for completion of similar debt financings, including the Financing Statements; provided, that in each case no event shall Seller, the Acquired Companies, their Affiliates or their respective Representatives be required to provide any pro forma financial statements or projections (v) using their reasonable best efforts to take effect at such actions as are reasonably requested by Buyer to facilitate the Effective Time satisfaction on a timely basis of all conditions precedent within Seller’s or its Affiliate’s control to obtaining the Debt Financing, (it being understood vi) requesting its independent accountants to provide reasonable assistance to Buyer in connection with the Debt Financing, and (vii) taking all corporate or organizational action necessary to permit the consummation of any debt financing; provided, that the Company foregoing shall have no obligation to pay not require the adoption of any corporate resolutions or discharge any such indebtedness actions that would be effective prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at Closing Date. Notwithstanding the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occursforegoing, neither the Company nor any of its Subsidiaries, Seller nor any of their respective officers Affiliates or directorsRepresentatives (including, as until the case may beClosing, the Acquired Companies) shall (i) be required to (A) provide such cooperation or assistance that in the good faith judgment of Seller, (1) unreasonably interferes with the ongoing business or operations of Seller and its Affiliates, including the Acquired Companies (2) cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement by Seller or the Acquired Companies, (3) be reasonably expected to cause any director, officer or employee of Seller or the Acquired Companies to incur any personal liability, or (4) cause any breach of any applicable law, (B) pay any commitment or other similar feefee or incur any costs or expenses (that are not promptly reimbursed by Buyer) in connection with any debt financing, (iiC) enter into incur any definitive agreement or have any material liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or any debt financing, (ivD) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect execute prior to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs Closing any definitive financing documents (including reasonable attorneys’ feesother than customary authorization letters) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant toany debt financing, and in accordance with, this Section 5.13, and shall indemnify and hold harmless or (E) take any corporate or organizational action approving any debt financing which is not contingent upon the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities Closing or expenses suffered or incurred by any of them in connection with that would be effective prior to the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt FinancingClosing.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Ares Management Corp), Stock Purchase Agreement
Financing Cooperation. Upon Prior to the request of ParentClosing, the Company shall provide, and shall cause its Subsidiaries to provide, and shall use its commercially reasonable efforts to cause its and their officers, employees and advisors, including legal and accounting, to provide reasonable cooperation requested by Parent in connection with Parent’s efforts to arrange and consummate the arrangement of any amendment to, debt or replacement or supplement of, Parent’s credit facilities equity financing transaction by Parent in connection with the Merger (the “Debt Financing”); provided that such cooperation does not unreasonably interfere with ) after the ongoing operations of the Company and date hereof, including using its Subsidiaries. Such commercially reasonable efforts shall include, to the extent reasonably requested by Parent, commercially reasonable efforts to: (ai) make available to prospective lenders, on a customary provide financial and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, other relevant information relating to regarding the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion that is reasonably necessary and cooperate in the preparation of pro forma financial information for the Debt Financing (the “Financing Sources”) Merger (including information to be used in the preparation of a customary an information package package, offering memorandum, prospectus, prospectus supplement or similar document regarding the business, assets, operations, financial condition, projections and prospects of Parent and the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent such financing or reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used necessary for the completion of the Debt Financing) as may be required to obtain the Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (dii) cooperate with respect the marketing efforts for the Financing (including consenting to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents reasonable use of the independent accountants logos of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing), (iii) unless promptly reimbursed by Parentparticipate as appropriate in meetings, be required to incur any other expenses in connection presentations, road shows, drafting sessions, and sessions with the Debt Financing or rating agencies as are reasonably necessary to consummate the Financing, (iv) be required to take assist Parent and its financing sources in the amendment or termination of any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company ’s or any of its Subsidiaries) ’ existing credit agreements, currency or interest hedging agreements, or other agreements, in each case, on terms satisfactory to Parent and all other actions taken that are reasonably requested by Parent in connection with the Financing and conditioned upon the occurrence of the Closing, in each case it being understood and agreed that information and documents provided by the Company, Company and its Subsidiaries may be delivered to agents and lenders and their respective Representatives pursuant representatives and (v) subject to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a appropriate confidentiality undertakings, cooperate reasonably current basis of the status of its efforts to arrange and consummate any Debt Financingwith Parent’s financing sources’ or underwriters’, as applicable, due diligence.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Caterpillar Inc), Agreement and Plan of Merger (Bucyrus International Inc)
Financing Cooperation. Upon (a) Subject to Section 6.11(a) and the remaining provisions of this Section 6.12, prior to the Merger Closing, the Company shall and shall cause its Subsidiaries to, at Parent’s sole expense, reasonably cooperate with Parent in connection with Parent’s arrangement of the Debt Financing, which cooperation by the Company shall consist of, at the reasonable request of Parent, (i) furnishing Parent with the financial information regarding the Company and its Subsidiaries required by clause (ii) of paragraph (e) of Exhibit C to the Debt Commitment Letters (for the avoidance of doubt, giving effect to the last sentence of such paragraph (f)) (the “Required Financial Information”), provided, however, for the avoidance of doubt, that such information shall not include, and Parent shall be solely responsible for, the preparation of 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, (ii) using reasonable best efforts to cause its senior officers to be available, during normal business hours and upon reasonable advance notice, to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies in connection with the Debt Financing, (iii) using reasonable best efforts, upon Parent’s prior written request, to furnish Parent at least five (5) Business Days prior to the Merger Closing with reasonable documents or other information relating to the Company or its Subsidiaries required by bank regulatory authorities with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act of 2011, (iv) using commercially reasonable efforts to assist Parent in obtaining accountants’ comfort letters from the Company’s independent accountants on customary terms and consistent with the accountants’ customary practice in connection with the Debt Financing, (v) using reasonable best efforts to furnish Parent, quarterly financial and operating data relating to the Company and its Subsidiaries’ assets and operations that is reasonably requested by Parent, (vi) using reasonable best efforts to obtain attorney audit response letters reasonably requested by Parent and customary for financings similar to the Debt Financing, (vii) providing requested authorization letters to the Financing Sources (including with respect to absence of material non-public information about the Company and its Subsidiaries and their securities in the public-side version of the documents distributed to prospective lenders), (viii) assisting with the preparation of appropriate and customary materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents customarily required in connection with debt financings, (ix) using commercially reasonable efforts to provide any customary payoff or similar letters in connection with any debt facilities of the Company or its Subsidiaries or Affiliates being terminated in connection with the consummation of the transactions contemplated hereby and (x) agreeing to enter into such agreements and to use its commercially reasonable efforts to deliver such officer’s certificates, as are customary in financings of such type and otherwise grant liens on, the assets of the Company or any of its Subsidiaries pursuant to such agreements as may be reasonably requested; provided, however, 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. Parent shall provide the Company and its counsel with a reasonable cooperation opportunity to review and comment upon any private placement memoranda or similar documents, or any materials for rating agencies, that include information about the Company or any of its Subsidiaries prepared in connection with the Debt Financing, and Parent shall include in such memoranda, documents and other materials, comments reasonably proposed by the Company. Following Parent’s efforts request, the Company will update the Required Financial Information so that such Required Financial Information remains in compliance with GAAP (except in the case of the unaudited statements, as permitted by Form 10-Q or other rules or regulations of the SEC) and does not contain any untrue statement of material fact or omit to arrange state any material fact necessary in order to make the statements contained therein not misleading. Notwithstanding anything to the contrary contained in this Agreement, neither the Company nor any of its Subsidiaries shall be required to (A) pay any commitment or other similar fee, (B) incur any liability of any kind (or cause their respective Representatives to incur any liability of any kind) prior to the Effective Time, (C) enter into any binding agreement or commitment in connection with the Debt Financing (or any Alternative Financing) that is not conditioned on the occurrence of the Effective Time and consummate does not terminate without liability to the Company or any amendment toof its Subsidiaries upon termination of this Agreement, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided D) take any action that such cooperation does not would (I) unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall include, to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (bII) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to cause any financing institutions contemplated to arrange and/or provide all representation or any portion of the Debt Financing (the “Financing Sources”) (including information warranty in this Agreement to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financingbreached, (cIII) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoffcause any director, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay officer or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director employee of the Company or any of its Subsidiaries to incur any personal liability, (IV) conflict with respect to the Debt Financing. Parent shall promptlyCharter, upon request by the Bylaws (or similar organizational documents of any of the Subsidiaries of the Company) or any Laws, reimburse (V) result in the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by contravention of, or that could reasonably be expected to result in a violation or breach of, or a default under, any contract to which the Company or any of its Subsidiaries is a party, (VI) provide access to or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless disclose information that the Company, its Subsidiaries and their respective Representatives from and against Company determines would jeopardize any and all damages, losses, costs, liabilities or expenses suffered or incurred by any attorney-client privilege of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries, (VII) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep prepare separate financial statements for any Subsidiary of the Company informed on a reasonably current basis of or change any fiscal period, or (VIII) authorize any corporate action prior to the status of its efforts to arrange and consummate any Debt FinancingEffective Time.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Bally Technologies, Inc.), Agreement and Plan of Merger (SHFL Entertainment Inc.)
Financing Cooperation. Upon the request of ParentThe Parties agree to provide, the Company shall use and each Party will cause its commercially reasonable efforts to provide reasonable cooperation in connection with Parent’s efforts to arrange respective Subsidiaries and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company its and its Subsidiaries. Such commercially reasonable efforts shall include' respective officers, employees and advisers to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as all cooperation reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them necessary in connection with the arrangement of the Debt Financing financing described in the Commitment Letters (including any capital markets financing contemplated by the Engagement Letter) in respect of the transactions contemplated by this Agreement and the Separation Agreement and any information used other financing, all to be consummated contemporaneously with or at or after the Effective Time in connection therewith (respect of the transactions contemplated by this Agreement or the Separation Agreement, including participation in meetings, due diligence sessions, road shows, the preparation of offering memoranda, private placement memoranda, prospectuses and similar documents, the execution and delivery of any commitment letters, credit agreements, underwriting or placement agreements, pledge and security documents, other than information provided definitive financing documents, or other requested certificates or documents, including comfort letters of accountants and legal opinions as may be reasonably requested by the Company or any of its Subsidiaries) other Party, and all taking such other actions as are reasonably required to be taken by the CompanyParties and each Party's respective Subsidiaries in the Commitment Letters; provided, its Subsidiaries however, that neither Party shall have any obligation at any time to continue to attempt to arrange or otherwise pursue the capital markets financing contemplated by the Engagement Letter if at such time such capital markets financing is not available on commercially reasonable terms in accordance with Section 7.2(f) of the Spinco Disclosure Letter; provided, further, that neither Party shall have any obligation to attempt to arrange or otherwise pursue any capital markets financing contemplated by the Engagement Letter in an original principal amount in excess of $300,000,000. Notwithstanding the timing reflected in the preceding sentence, the Parties agree to use commercially reasonable efforts to investigate the feasibility of accelerating the borrowing of the capital markets financing contemplated by the Engagement Letter so that the condition to Heinz's and their respective Representatives pursuant Spinco's obligation to this consummate the Merger set forth in Section 5.138.2(h)(ii) shall be satisfied as promptly as practicable. Parent and Merger Sub shall The Parties will keep the Company one another informed on a reasonably current basis of the status of its their efforts to arrange the financing contemplated by the Commitment Letters, including making reports with respect to significant developments. In the event any portion of such financing becomes unavailable in the manner or from the sources originally contemplated at the times contemplated in the first sentence of this Section 7.2(f), Section 7.2(f) of the Spinco Disclosure Letter and consummate any Debt Financingthis sentence, the Parties will use their reasonable best efforts to arrange replacement financing, if necessary, on terms and conditions that would cause the conditions set forth in Sections 8.1(h), 8.2(h) and 8.3(e) to be satisfied, it being understood that (i) the Parties shall have a reasonable and customary time to endeavor to arrange the capital markets financing described in the Engagement Letter following receipt of the Section 355 Ruling (or waiver by Heinz of the condition set forth in Section 8.2(f)) and that (ii) in the event that such capital markets financing is not available on commercially reasonable terms in accordance with Section 7.2(f) of the Spinco Disclosure Letter, the issuance of the senior secured notes contemplated by the Second Commitment Letter on terms and conditions not materially more burdensome to Heinz, Spinco, Del Monte or the Surviving Corporation than those set forth in the Second Commitment Letter shall be deemed to satisfy the condition set forth in Section 8.2(h)(ii).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Del Monte Foods Co), Agreement and Plan of Merger (Heinz H J Co)
Financing Cooperation. Upon (a) Prior to the request of ParentClosing, the each Seller and each Acquired Company shall, and shall use its commercially reasonable best efforts to cause the appropriate representatives (including senior management) of each Acquired Company to, use reasonable best efforts to provide such cooperation as is reasonably requested by Purchaser upon reasonable cooperation prior notice in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities the arrangement of debt financing for the Transactions (the “Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company , in each case at Purchaser’s sole cost and its Subsidiaries. Such commercially reasonable efforts shall includeexpense, including to the extent reasonably requested by Parent, commercially reasonable efforts toPurchaser: (ai) make available reasonably assisting Purchaser in the preparation of definitive financing documents, and other materials reasonably and customarily requested to prospective lendersbe used in connection with obtaining the Debt Financing, including using reasonable best efforts to cooperate in satisfying the conditions precedent set forth in any definitive documentation relating the Debt Financing, provided that such conditions precedent do not impose on a any Sellers or Acquired Company Entities any obligations not otherwise provided for in this Agreement, (ii) delivering possessory collateral (such as certificated equity and promissory notes) within its possession to the Debt Financing Sources, subject to the occurrence of the Closing; provided, however, that the delivery of any collateral shall be delivered in escrow pending release at the Closing, (iii) assisting Purchaser and the Debt Financing Sources in the timely preparation of any customary and reasonable basis reasonably ýavailable marketing materials and upon reasonable notice, appropriate personnel of other information to be used in connection with the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion ýsyndication of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a providing customary information package regarding the business, operations, financial condition, projections executed authorization and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financingmanagement representation letters), (civ) assist in the obtaining of requesting customary payoff letters letters, lien terminations and instruments of discharge of all Indebtedness to be delivered at Closing paid off pursuant to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective TimeSection 7.03(f)(iii), (dv) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining providing all customary legal opinions to be delivered in connection with such financing documentation and (f) assist Parent in obtaining customary comfort letters and consents other information about each of the independent accountants of the Acquired Company Entities and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any each of their respective officers or directors, representatives as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses requested in connection with the Debt Financing and required under applicable “know your customer” and anti-money-laundering rules and regulations at least three (3) Business Days prior to the Closing Date to the extent requested by Purchaser in writing at least ten (10) days prior to the Closing Date, and (vi) taking all actions reasonably necessary or (iv) be required reasonably requested by the lenders or Purchaser, subject to take any action in his/her capacity as a director the occurrence of the Company or any of its Subsidiaries with respect Closing, necessary to permit the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement consummation of the Debt Financing and any information used to obtain the proceeds thereof, including taking all required corporate action to authorize the Debt Financing on the Closing Date. Sellers hereby consent to the reasonable use of the Acquired Companies’ logos in connection therewith (other than information with the Debt Financing; provided by that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Acquired Company Entities or any the reputation or goodwill of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and Acquired Company Entities or their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financingtrademarks, products, services, offerings or Intellectual Property rights.
Appears in 2 contracts
Samples: Equity Purchase Agreement (Infrastructure & Energy Alternatives, Inc.), Equity Purchase Agreement (Infrastructure & Energy Alternatives, Inc.)
Financing Cooperation. Upon (a) The Company shall, and shall cause its Subsidiaries to (and shall use its reasonable best efforts to cause its and their respective Representatives to), use its and their respective reasonable best efforts to provide all cooperation as may be reasonably requested by Parent in arranging, obtaining and syndicating any third party Indebtedness for borrowed money to be raised by Parent or its Subsidiaries or raising any equity financing by Parent, in each case for the request purpose of Parentfinancing the aggregate Merger Consideration and any other amounts required to be paid in connection with the consummation of the transactions contemplated hereby and all related fees and expenses of Parent and Merger Sub (any such debt financing, the “Debt Financing” and any such equity financing, the “Equity Financing” and, together with the Debt Financing, the “Financing”). Without limiting the generality of the foregoing, the Company shall, and shall cause its Subsidiaries to (and shall use its commercially reasonable best efforts to provide cause its and their respective Representatives to), use its and their respective reasonable cooperation in connection with Parent’s best efforts to arrange (i) upon reasonable advance notice and consummate any amendment toduring normal business hours, or replacement or supplement ofmake senior management, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations external auditors and advisors of the Company and its Subsidiaries. Such commercially Subsidiaries available to participate in a reasonable efforts shall includenumber of meetings, presentations, road shows, drafting sessions and due diligence sessions with proposed lenders, lead arrangers, initial purchasers, placement agents and/or other agents, lenders or investors for the Financing, and in sessions with rating agencies, (ii) provide reasonable assistance with the preparation of customary materials (to the extent relating to the Company or its Subsidiaries) for lender and investor presentations, rating agency presentations, confidential information memoranda, offering memoranda, prospectuses and similar documents customary or reasonably required in connection with the Financing, including the marketing and syndication thereof, in each case as may be reasonably requested by Parent, commercially reasonable efforts to: (aiii) make available on an ongoing basis, and in any event prior to prospective lendersthe Effective Time, on a furnish Parent and its Financing Sources with (A) audited consolidated balance sheets and related audited consolidated statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three (or two in respect of audited consolidated balance sheets) most recently ended fiscal years that have ended at least 60 days prior to the Effective Time (and the audit reports for such financial statements shall not be subject to any “going concern” qualifications); (B) unaudited consolidated balance sheets and related unaudited consolidated statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent interim quarterly period that has ended at least 40 days prior to the Effective Time, in the case of each of clauses (A) and (B), prepared in accordance with GAAP (except, in the case of the unaudited statements, subject to normal year-end audit adjustments and the absence of footnote disclosure); and (C) such other customary and reasonable basis and upon reasonable noticefinancial statements, appropriate personnel of schedules or other financial data or information reasonably requested by Parent regarding the Company and its SubsidiariesSubsidiaries of the type required to permit the Company’s independent accountants to issue customary “comfort letters” to Parent’s Financing Sources which are underwriters or initial purchasers of securities constituting a portion of the Financing, including as to customary negative assurances and change period in order to consummate any transaction comprising a part of the Financing, (biv) providepromptly furnish Parent and its Financing Sources with such other financial, as promptly as reasonably practicable, due diligence and other information relating to the Company and its Subsidiaries as reasonably requested by the Parent or its Financing Sources from time to time or which is customary and reasonably necessary for the completion of the Financing (other than pro forma financial information, but including such information as is necessary for Parent and its Representatives to prepare pro forma financial information and projections of Parent of the nature deemed necessary by Parent’s Financing Sources or otherwise required by applicable Law in connection with the Financing), (v) using reasonable best efforts to cause the Company’s independent accountants to provide reasonable assistance to Parent consistent with their customary practice, (vi) furnish to such Financing Sources at least three Business Days prior to Closing all information regarding the Company and its Subsidiaries that is required in connection with, and in accordance with the terms of, the Financing by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested by any financing institutions contemplated Financing Source in writing at least 10 Business Days prior to arrange and/or Closing and (vii) provide all customary authorization letters authorizing the distribution of information to prospective lenders, subject to customary terms and conditions, and containing a customary representation to the Financing Sources which are arranging or any providing the portion of the Debt Financing (the “Financing Sources”) (including constituting syndicated credit facilities that such information to be used in the preparation of does not contain a material misstatement or omission and containing a customary representation to such Financing Sources that the public side versions of such documents, if any, do not include material non-public information package regarding the business, operations, financial condition, projections and prospects of about the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financingsecurities.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (WHITEWAVE FOODS Co)
Financing Cooperation. Upon Prior to the request of ParentClosing, the Company Sellers shall use its commercially reasonable best efforts to provide to Purchaser all reasonable cooperation reasonably requested by Purchaser that is necessary in connection with Parent’s the Debt Financing, including (x) using reasonable best efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall include, to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lendersparticipate, on a customary and at reasonable basis times and upon reasonable notice, appropriate personnel in a reasonable number of meetings (including customary meetings with the Company parties acting as lead arrangers or agents for, and its Subsidiariesprospective lenders and purchasers of, the Debt Financing), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Debt Financing, (b) provideassist Purchaser and its Financing Sources in the preparation of customary offering memoranda, as promptly as reasonably practicablebank information memoranda, information rating agency presentations and lender presentations relating to the Company Debt Financing, (c) cooperate with the marketing efforts of Purchaser and its Subsidiaries to any financing institutions contemplated to arrange and/or provide Financing Sources for all or any portion of the Debt Financing Financing, (the “d) provide and execute documents as may be reasonably requested by Purchaser or its Financing Sources”, (e) execute and deliver any pledge and security documents and otherwise facilitate the pledging of collateral, and (including f) provide such information to be used in the preparation about powers of a customary information package regarding the business, operations, financial condition, projections and prospects attorney executed on behalf of the Company Transferred Entities as may be reasonably requested by Purchaser or its Financing Sources, and its Subsidiaries (y) using commercially reasonable efforts to assist in obtaining accountant's comfort letters and legal opinions reasonably requested by Purchaser and customary for financings similar to the Debt Financing; provided, however, that, (i) irrespective of the above, no obligation of the Sellers or any of their Affiliates under any certificate, document or instrument shall be effective until the Closing and none of the Sellers or any of their Affiliates shall be required to take or commit to take any action under any certificate, document or instrument that is not contingent upon the Closing (including the entry into any agreement that is effective before the Closing) or that would be effective prior to the Closing, (ii) nothing herein shall require such cooperation to the extent reasonably requested by Parent and/or it would interfere unreasonably with the Financing Sources business or operations of the Sellers or their Affiliates or encumber any assets of the Sellers or their Affiliates, and (iii) none of the Sellers or any of their Affiliates shall be required to assist in preparation of customary issue any offering or information documents document. Notwithstanding anything to be used for the completion of contrary in this Agreement (including the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit FacilitiesAlternative Financing contemplated by Section 5.18(c)), in each case no event shall Sellers or any of their Affiliates be obligated to take effect at the Effective Time (it being understood provide Purchaser with any cooperation that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time would not otherwise be necessary in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents the type of Debt Financing contemplated by the Debt Commitment Letter entered into by Purchaser as of the independent accountants date hereof and attached as Exhibit C. None of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor Sellers or any of their respective officers or directors, as the case may be, Affiliates shall (i) be required to bear any cost or expense or to pay any commitment or other similar fee, (ii) enter into any definitive agreement fee or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or make any other agreement or document related to the Debt Financing, payment (iii) unless such payment is promptly reimbursed by Parent, be required to Purchaser) or incur any other expenses liability in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect foregoing prior to the Debt FinancingClosing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and Purchaser shall indemnify and hold harmless the CompanySellers, its Subsidiaries their Affiliates and their respective Representatives representatives from and against any and all damagesliabilities, losses, damages, claims, costs, liabilities or expenses expenses, interest, awards, judgments and penalties suffered or incurred by any of them in connection with the arrangement of the Debt Financing (including any action taken in accordance with this Section 5.19) and any information used utilized in connection therewith (other than historical information relating to the Sellers or their Subsidiaries provided by the Company Sellers in writing specifically for use in the Debt Financing offering documents). Purchaser shall, promptly upon request by the Sellers, reimburse the Sellers for all documented and reasonable out-of-pocket costs (including reasonable fees and expenses of outside counsel and other advisors) incurred by the Sellers or their Affiliates in connection with this Section 5.19. The Sellers hereby consent to the use of their and their Subsidiaries’ logos in connection with the Debt Financing; provided that such logos shall be used solely in a manner customary for financing transactions of this type and in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect the Sellers or any of its their Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (Chemtura CORP), Stock and Asset Purchase Agreement (Platform Specialty Products Corp)
Financing Cooperation. Upon (a) The Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its and their Representatives to, at the request sole expense of Parent, the Company shall use its commercially and their reasonable best efforts to provide reasonable such customary cooperation as may reasonably be requested by Parent in connection with the Financing and any Replacement Financing, in each case, to the extent such assistance is customarily provided in financings comparable to the Financing or any Replacement Financing, as the case may be, including (i) designating one or more members of senior management of the Company to assist with the preparation of customary offering and syndication documents and materials, including registration statements, prospectuses and prospectus supplements, private placement or offering memoranda, bank information memoranda, bank syndication material and packages, lender and investor presentations, rating agency materials and presentations, and similar documents and materials, in connection with the Financing, (ii) designating one or more members of senior management of the Company to participate in a reasonable number of drafting sessions, management presentations, rating agency presentations, lender meetings (including one-on-one meetings) and one or more road shows, in each case, upon reasonable advance notice and at reasonable times, (iii) providing all information that is reasonably available or readily obtainable regarding the Company and its Subsidiaries reasonably requested by Parent in connection with the Financing and any Replacement Financing, including (A) such information as is reasonably necessary to assist Parent in the preparation of any pro forma financial statements required in connection therewith (it being understood that the Company need only to provide information to assist in the preparation thereof, and shall not be required to provide pro forma financial statements or pro forma adjustments reflecting (x) the Financing or any description of all or any component of the Financing, or (y) the transactions contemplated or required hereunder), (B) designating, upon request, whether any such information is suitable to be made available to lenders and other investors who do not wish to receive material non-public information, (C) executing customary authorization letters and management representation letters, and (D) providing the financial statements of the Company required by clause (b)(i) of paragraph (4) in Exhibit B to the Commitment Letter (the “Required Financial Information”), (iv) providing the Financing Sources with reasonable access to the properties, books and records of the Company and its Subsidiaries, (v) requesting the Company’s independent accountants to provide customary and reasonable assistance to Parent, (vi) assisting Parent in obtaining any corporate credit and family ratings and, if applicable, facility ratings from any ratings agency contemplated by the Commitment Letter or Financing Agreements, (vii) requesting the Company’s independent auditors to cooperate with Parent’s efforts independent auditors, participate in accounting due diligence sessions and provide accountant’s comfort letters and consents, (viii) assisting in preparation of Financing Agreements and related definitive documents, guarantees (if required) and other certificates and documents as may be reasonably requested by Parent, (ix) cooperating with Parent in seeking from the Company’s existing lenders such waivers, amendments, supplements, consents or payoff letters which may be reasonably requested by Parent or necessary in connection with the Financing, (x) providing at least five Business Days prior to arrange the anticipated Closing all documentation and consummate other information about the Company or any amendment toof its Affiliates required by applicable “know your customer” and anti-money laundering rules and regulations, or replacement or supplement ofincluding the USA PATRIOT Act, Parent’s credit facilities to the extent reasonably requested at least ten Business Days prior to the anticipated Closing and (“Debt xi) taking all corporate actions, subject to and conditioned on the occurrence of the Effective Time, reasonably requested by Parent to permit the consummation of the Financing”); provided provided, however, that any such requested cooperation does as set forth above shall not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall include, to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries. Notwithstanding the foregoing, nor any of their respective officers or directors, as the case may be, nothing in this Section 6.15 shall (iA) be required require the Company or its Subsidiaries to pay provide any commitment or other similar feeRestricted Information, (iiB) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director that would reasonably be expected to conflict with or violate any organizational documents of the Company or any of its Subsidiaries with respect Subsidiaries, any applicable Law, or any material agreement to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by which the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant tois a party, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by C) require the Company or any of its SubsidiariesSubsidiaries to pay any commitment or similar fee, pay or reimburse any third party expense, provide any indemnities, or incur or assume any liability or obligation, in connection with the Financing (or any other financing or refinancing transactions undertaken by Parent or its Subsidiaries in connection with the transactions contemplated hereby) and all other actions taken prior to the Closing (except for out-of-pocket expenses incurred by the CompanyCompany in connection with the cooperation provided by the Company pursuant to Section 6.15(a), for which Parent is obligated to reimburse the Company pursuant to Section 6.15(b) below), (D) subject to clause (iii)(C) of this Section 6.15(a), require the Company or any of its Subsidiaries and their respective Representatives pursuant to this Section 5.13. execute any document, agreement, certificate or instrument with respect to the Financing (or any other financing or refinancing transactions undertaken by Parent and Merger Sub shall keep or its Subsidiaries in connection with the transactions contemplated hereby) that is not contingent on the Closing or that would be effective prior to the Effective Time, (E) require the Board of Directors of the Company informed on a reasonably current basis or the board of directors (or other governing body) of any of the status of Company’s Subsidiaries to approve or authorize any Financing (or any other financing or refinancing transactions undertaken by Parent or its efforts Subsidiaries in connection with the transactions contemplated hereby) or agreements related thereto or (F) require the Company to arrange and consummate prepare any Debt Financingfinancial statements other than the Required Financial Information.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Clarcor Inc.), Agreement and Plan of Merger (Parker Hannifin Corp)
Financing Cooperation. Upon the request of Parent, the Company shall use its commercially reasonable efforts to provide reasonable cooperation in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall include, to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available Parent shall, and shall use reasonable best efforts to prospective lenderscause its applicable Affiliates to, on a customary use reasonable best efforts to take, or cause to be taken, all actions and reasonable basis and upon reasonable noticedo, appropriate personnel of the Company and its Subsidiaries, (b) provideor cause to be done, as promptly as reasonably practicablepossible, information relating all things necessary, proper or advisable to arrange, obtain and consummate the Financing on the terms and conditions described in the Equity Commitment Letter and the Debt Commitment Letter, including reasonable best efforts in (i) maintaining in effect the Equity Commitment Letter and the Debt Commitment Letter, (ii) as promptly as possible, satisfying on a timely basis all conditions applicable to Parent obtaining the Financing set forth therein (including by consummating the Equity Financing pursuant to the Company terms of the Equity Commitment Letter and its Subsidiaries the Debt Financing pursuant to any financing institutions contemplated the terms of the Debt Commitment Letter), (iii) negotiating and entering into definitive agreements with respect thereto on the terms and conditions contained therein or on other terms in the aggregate not materially less favorable, taken as a whole, (iv) complying with their respective obligations under the Commitment Letters, (v) causing their senior management as well as appropriate representatives of Investor and their Affiliates, if applicable, to arrange cooperate with the marketing and/or provide all or any portion syndication efforts of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary Sources for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion all of the Debt Financing, (cvi) assist preparing in a timely manner the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including necessary marketing materials with respect to the auditor consents in connection with any filings with Financing, (vii) commencing the SEC. Anything in this Section 5.13 marketing and/or syndication activities contemplated by the Debt Commitment Letter as promptly as practicable, (viii) enforcing its rights under the Commitment Letters and (ix) consummating the Financing at or prior to the contrary notwithstandingClosing, until including by causing the Effective Time occursDebt Financing Sources to fund the Debt Financing at the Closing. Any material breach by any Parent Entity of any Debt Document (as defined below) shall be deemed to be a breach by Parent of the foregoing sentence. Parent shall, neither as promptly as reasonably practicable after obtaining knowledge thereof, give the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall written notice (i) of any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be required expected to pay result in a breach or default) by any commitment party to the Equity Commitment Letter or other similar feethe Debt Commitment Letter, (ii) enter into of the receipt of any definitive agreement written notice or have other written communication from any liability Person with respect to any (A) actual or potential breach, default, termination or repudiation by any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related party to the Equity Commitment Letter or the Debt Commitment Letter or (B) material dispute or disagreement between or among any parties to the Equity Commitment Letter or the Debt Commitment Letter (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Financing), (iii) unless promptly reimbursed by Parentin the event Parent becomes aware that any portion of the Financing is not reasonably likely to be available to consummate the Transactions, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take of any action in his/her capacity as a director termination or expiration of the Company Equity Commitment Letter or the Debt Commitment Letter and (v) any change, circumstance or event which causes Parent to believe in good faith that it shall not be able to timely obtain all or any material portion of its Subsidiaries with respect the Financing in the amounts or from the sources contemplated by the Commitment Letters (and that Parent will not be able to the Debt Financingobtain acceptable alternate financing). Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis upon request by the Company of the status of its efforts to arrange the Financing contemplated by the Commitment Letters, including providing copies of all definitive agreements related to the Financing to the extent requested by the Company. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (including the “market flex” provisions set forth in the fee letter) or if Parent reasonably determines that such funds may become unavailable to Parent on the terms and conditions set forth therein, Parent shall, without limiting the obligations of Parent set forth in the immediately following sentence, as promptly as reasonably practicable following the occurrence of such event: (i) notify the Company in writing thereof; (ii) use reasonable best efforts to arrange to obtain alternative financing, including from alternative sources, on terms in the aggregate not materially less favorable to Parent (in the reasonable judgment of Parent), taken as a whole and taking into account the “market flex” provisions set forth in the fee letter, than the Debt Financing contemplated by the Debt Commitment Letter in an amount sufficient to consummate the Transactions (“Alternative Financing”) and (iii) use reasonable best efforts to obtain a new financing commitment letter that provides for such alternative financing and, promptly after execution thereof, deliver to the Company true and complete copies of the new commitment letter and the related fee letters (provided, however, that the fee amounts and other economic terms, and the rates and amounts included in the “market flex” provisions (but not covenants), may be redacted, none of which redacted provisions would adversely affect the conditionality or aggregate principal amount of the Financing) and related definitive financing documents with respect to such Alternative Financing. The provisions of this Section 6.12 and Section 9.11 shall be applicable to the Alternative Financing, and, for the purposes of this Section 6.12 and Section 9.11, all references to the Debt Financing shall be deemed to include such Alternative Financing, all references to the Debt Commitment Letter shall include the applicable documents for the Alternative Financing and all references to the Debt Financing Sources shall include the Persons providing or arranging the Alternative Financing. Parent shall not, and shall cause its applicable controlled Affiliates not to, permit, without the prior written consent of the Company, any amendment or modification to be made to, or any waiver of any provision or remedy under, any Commitment Letter or the definitive agreements with respect thereto (such definitive agreements related to the Debt Financing, collectively, with the Debt Commitment Letter, the “Debt Documents”) or any fee letter or other Contract related to the Commitment Letters, if such amendment, modification or waiver would (A) reduce the aggregate amount of proceeds from the Financing (including by changing the amount of fees to be paid or original issue discount thereof) available to fund the amounts required to be paid by Parent under this Agreement below the amount required to consummate the Transactions, (B) impose any new or additional conditions or contingencies or otherwise amend, modify or expand any conditions precedent to the receipt of the full amount of the Financing or (C) otherwise reasonably be expected to prevent or materially impair or delay the ability of Parent to consummate the Transactions or adversely impact the ability of Parent (or, in the case of the Equity Commitment Letter, the Company) to enforce its rights against any other party to any Commitment Letter or any Debt FinancingDocument. Parent shall promptly deliver copies of any such amendment, modification or waiver of the Commitment Letters or the Debt Documents to the Company. Parent shall fully pay, or cause to be fully paid, all commitment or other fees arising pursuant to the Debt Commitment Letter as and when they become due.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Black Box Corp)
Financing Cooperation. Upon (a) Prior to the request of ParentEffective Time, the Company shall, and shall use cause its commercially reasonable efforts to Subsidiaries and their respective Representatives to, provide such reasonable cooperation in connection with any financing by Parent or any of its Subsidiaries in connection with the Transactions as may be reasonably requested by Parent’s efforts to arrange , Merger Sub or their Representatives. Without limiting the generality of the foregoing, the Company shall, and consummate any amendment shall cause its Subsidiaries and their respective Representatives to, or replacement or supplement of, Parentupon request (i) furnish the report of the Company’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with auditor on the ongoing operations most recently available audited consolidated financial statements of the Company and its Subsidiaries. Such commercially Subsidiaries and use its reasonable best efforts shall include, to obtain the consent of such auditor to the extent use of such report in accordance with normal custom and practice and use reasonable best efforts to cause such auditor to provide customary comfort letters to the underwriters, initial purchasers or placement agents, as applicable, in connection with any such financing; (ii) furnish any additional financial statements, schedules or other financial data relating to the Company and its Subsidiaries reasonably requested by Parent as may be reasonably necessary to consummate any such financing, including any pro forma financial statements required pursuant to the Securities Act in connection with any such financing; (iii) 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 auditors in connection with, the financing, at reasonable times and upon reasonable advance notice; (iv) make available the employees and advisors of the Company and its Subsidiaries to provide reasonable assistance with Parent’s preparation of business projections, financing documents and offer materials; (v) obtain the cooperation and assistance of counsel to the Company and its Subsidiaries in providing customary legal opinions and other services; (vi) provide information, documents, authorization letters, opinions and certificates, enter into agreements (including supplemental indentures) and take other actions that are or may be customary in connection with the financing or necessary or desirable to permit Parent to fulfill conditions or obligations under the financing documents, provided that such agreements entered into shall be conditioned upon, and shall not take effect until, the Effective Time; (vii) assist in the preparation of one or more confidential information memoranda, prospectuses, offering memoranda and other marketing and syndication materials reasonably requested by Parent, ; (viii) use commercially reasonable reasonably efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel ensure that the syndication efforts benefit materially from the existing banking relationships of the Company and its Subsidiaries, (bix) providepermit Parent’s reasonable use of the Company’s and its Subsidiaries’ logos for syndication and underwriting, as promptly applicable, of financing (subject to advance review of and consultation with respect to such use), (x) participate in meetings and presentations with prospective lenders and investors, as reasonably practicable, information relating to applicable (including the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion participation in such meetings of the Debt Financing Company’s senior management), (the “Financing Sources”xi) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources use commercially reasonable efforts to assist in preparation procuring any necessary rating agency ratings or approvals, and (xii) not commence or effect any offering, placement or arrangement of customary offering any debt securities or information documents to be used for bank financing competing with the completion of the Debt Financing, proposed Parent financing (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge not permit any such indebtedness prior offering, placement or arrangements to the Effective Timeoccur on its behalf), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (United Technologies Corp /De/), Agreement and Plan of Merger (Goodrich Corp)
Financing Cooperation. Upon Prior to the request of ParentClosing, the Company shall, and shall cause its Subsidiaries to, use its commercially reasonable best efforts to provide reasonable to Parent and Merger Sub, at Parent’s sole expense, all cooperation reasonably requested by Parent that is necessary in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities obtaining financing in connection with the Merger (“Debt Financing”); provided that so long as such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall include), to including (a) furnishing Parent and Merger Sub such financial and other pertinent information regarding the extent Company as may be reasonably requested by Parent, commercially (b) participating in a reasonable number of meetings, due diligence sessions, drafting sessions and sessions with rating agencies in connection with obtaining financing in connection with the Merger, (c) assisting Parent in the preparation of customary offering memoranda, bank information memoranda, authorization letters, confirmations and undertakings, rating agency presentations and lender presentations relating to obtaining financing in connection with the Merger, (d) providing and executing such customary documents as may be reasonably requested by Parent related to financing in connection with the Merger, (e) using reasonable best efforts to: to satisfy the conditions precedent set forth in any definitive documentation relating to financing in connection with the Merger to the extent the satisfaction of such conditions requires the cooperation of or is within the control of the Company, (af) make available using reasonable best efforts to prospective lenderscooperate with the financing sources’ due diligence investigation, on a to the extent customary and reasonable basis and upon reasonable notice, appropriate personnel not unreasonably interfering with the business of the Company and its Subsidiaries, (bg) provide, as promptly as reasonably practicable, information relating using commercially reasonable efforts to the Company obtain accountant’s comfort letters and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent legal opinions reasonably requested by Parent and/or the Financing Sources to assist in preparation of and customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiariesfinancings, including with respect issuing any customary representations letters to the auditor consents in connection with any filings with the SECKPMG LLP. Anything in this Section 5.13 5.15 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financingfinancing in connection with the transactions contemplated by this Agreement, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing such financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financingsuch financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of out-of-pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.135.15, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing Parent’s financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing5.15.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Harris Teeter Supermarkets, Inc.), Agreement and Plan of Merger (Kroger Co)
Financing Cooperation. Upon (a) The Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to provide such assistance as reasonably requested by Parent in connection with financing arrangements (including assumptions, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations or prepayments of existing financing arrangements) as Parent may reasonably determine necessary or advisable in connection with the request completion of Parentthe Merger or the other transactions contemplated by this Agreement. Such assistance shall include, but not be limited to, the following: (a) providing such information and making available such personnel as Parent may reasonably request, including the preparation and furnishing in a timely fashion of all financial statements and other data customary to be included in connection therewith (including all audited financial statements, all unaudited financial statements (which shall have been reviewed by the independent accounting firm for the Company as provided in the procedures specified by the Public Company Accounting Oversight Board in AU 722)) and all information regarding the Company and its Subsidiaries reasonably required for Parent to prepare pro forma financial statements, financial data, audit reports and other information regarding the Company and its Subsidiaries of the type required by and in compliance with Regulation S-X and Regulation S-K promulgated under the Securities Act and related forms; (b) participation in, and assistance with, any marketing activities related to such financing; (c) participation by senior management of the Company in, and their assistance with, the preparation of rating agency presentations and meetings with rating agencies; (d) taking such actions as are reasonably requested by Parent or its financing sources to facilitate the satisfaction of all conditions precedent to obtaining such financing; and (e) assisting in any exchange transactions or consents with respect to the Company Indentures. Notwithstanding the foregoing, the Company and its Subsidiaries shall use its commercially reasonable efforts not be required pursuant to provide reasonable cooperation in connection with Parent’s efforts this Section 4.20 to arrange (1) enter into any letter, certificate, document, agreement or instrument (other than customary authorization and consummate any amendment to, representation letters and notices) that will be effective prior to the Closing (or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation will otherwise be effective if the Closing does not occur), (2) take any action to the extent it would unreasonably interfere with disrupt the ongoing business or operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall includethe Company Subsidiaries (taken as a whole) or require any of them to take any actions that would reasonably be expected to violate any applicable Legal Requirement, any Contract or their respective Organizational Documents, (3) provide any information to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, such information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information would not be required to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar provided pursuant to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective TimeSection 4.8(a), (d4) cooperate with respect to matters relating to pledges of collateral take any actions, or omit to take effect at an action, that would reasonably be expected to result in any personal liability for the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may beofficers, shall (i) be required to pay any commitment employees or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director stockholders of the Company or any of its Subsidiaries with respect Subsidiaries, (5) provide any information that cannot be provided without unreasonable burden or expense or (6) take any action, or omit to the Debt Financing. Parent shall promptlytake an action, upon request by the Companythat would reasonably be expected to cause any representation, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred warranty or covenant in this Agreement to be breached by the Company or any of its Subsidiaries (unless waived by Parent) or their respective Representatives cause any closing condition set forth in connection with their respective obligations pursuant toArticle V to fail to be satisfied. The Company hereby consents to Parent’s use of and reliance on any audited or unaudited financial statements relating to the Company and the consolidated Company Subsidiaries, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against including any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection filings that Parent desires to make with the arrangement SEC. In addition, the Company will use reasonable best efforts, at Parent’s sole cost and expense, to obtain the consents of any auditor to the inclusion of the Debt Financing and any information used financial statements referenced above in connection therewith (other than information provided by appropriate filings with the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt FinancingSEC.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (DISH Network CORP), Agreement and Plan of Merger (EchoStar CORP)
Financing Cooperation. Upon the request of Parent, the Company (a) Parent and Purchaser shall use its commercially their respective reasonable best efforts to provide cause to be taken all actions necessary to obtain the Financing on the terms and subject to the conditions described in the Commitment Letter, including using their respective reasonable cooperation best efforts to: (i) maintain in connection effect the Commitment Letter and negotiate and enter into definitive agreements with Parent’s efforts respect to arrange the Financing (A) on the terms and subject to the conditions reflected in the Commitment Letter or (B) on other terms that are acceptable to Parent and Purchaser and would not materially and adversely impact the ability of Parent and Purchaser to consummate the transactions contemplated by this Agreement without delay; (ii) comply without delay with all covenants, and satisfy without delay all conditions, required to be complied with or satisfied by Parent or Purchaser in the Commitment Letter and in such definitive agreements; (iii) cause the Financing to be consummated at such time or from time to time as is necessary for Parent and Purchaser to satisfy their respective obligations under this Agreement; (iv) pay any amendment to, and all commitment or replacement other fees in a timely manner that become payable by Parent or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with Purchaser under the ongoing operations Commitment Letter following the date of the Company and its Subsidiaries. Such commercially reasonable efforts shall includethis Agreement, to the extent that the failure to pay such fees would be reasonably requested by Parent, commercially reasonable efforts to: (a) make available expected to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel adversely impact the availability of the Company financing thereunder; provided, however, notwithstanding anything to the contrary contained in this Agreement, Parent and its SubsidiariesPurchaser shall not be required to, (b) provideand Parent and Purchaser shall not be required to cause any other person to, commence, participate in, pursue or defend any Action against or involving any of the persons that have committed to provide any portion of, or otherwise with respect to, the Financing. In the event any portion of the Financing becomes or would reasonably be expect to become unavailable on the terms and conditions contemplated in the Commitment Letter for any reason or the Commitment Letter shall be terminated or modified in a manner materially adverse to Parent or Purchaser for any reason, Parent and Purchaser shall promptly so notify the Company, and shall use their respective reasonable best efforts to obtain, as promptly as reasonably practicable, information relating and in no event later than the Outside Date, from the same and/or alternative financing sources alternative financing on terms not materially less favorable to Parent and Purchaser than the terms of the Financing in an amount equal to the Company lesser of (i) an amount sufficient to consummate the Offer and its Subsidiaries the Merger and the other Transactions contemplated by this Agreement (after taking into consideration the funds otherwise available to Parent and Purchaser), and (ii) the amount of financing that was contemplated by the Commitment Letter on the date of this Agreement. In the event any alternative or substitute financing institutions contemplated is obtained by Parent and Purchaser in accordance with the terms of this Section 7.19(a) (the “Alternative Financing”), references in this Agreement to arrange and/or provide all or any portion the Financing (including, for avoidance of doubt, the Debt references in this Section 7.19 and Section 1.1, but excluding references in Section 5.4) shall be deemed to refer to the Alternative Financing, and if a new financing commitment letter is entered into in connection with such Alternative Financing (the “Financing SourcesNew Commitment Letter”), references in this Agreement to the Commitment Letter (including, for avoidance of doubt, the references in this Section 7.19, but excluding the references in Section 5.4 and clause (ii) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar preceding sentence) shall be deemed to refer to the Debt Financing) to New Commitment Letter. Parent and Purchaser will provide the extent reasonably requested Company with a copy of any New Commitment Letter obtained by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time Purchaser in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of an Alternative Financing as promptly as practicable following the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financingexecution thereof.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Microsemi Corp), Agreement and Plan of Merger (Actel Corp)
Financing Cooperation. Upon 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the request of Parent, Purchase Price (the Company shall use its commercially reasonable efforts to provide reasonable cooperation in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further that, in no event shall the receipt of such Debt Financing be a condition to Closing and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement and to perform its obligations hereunder. Prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall includeGroup Companies), to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, including as promptly as reasonably practicablepractical, (a) furnishing Buyer with the Required Financial Information and other pertinent information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent Group Companies as may be reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used Buyer for the completion of the Debt Financing, (cb) assist participating in the obtaining of customary payoff letters telephonic meetings and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings otherwise reasonably assisting with the SEC. Anything in this Section 5.13 to the contrary notwithstandingpreparation of appropriate and customary materials customary presentations, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall due diligence sessions (iincluding accounting due diligence sessions) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ivii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in Confidential Treatment Requested by Outdoor Products Spinco Inc. Pursuant to 17 C.F.R. Section 200.83 connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligence, (e) subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companies, and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to take any action deliver in his/her capacity as a director connection with the Debt Financing, in each case, solely to the extent reasonable and customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneysAffiliates’ fees) incurred by the Company reputation or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financinggoodwill.
Appears in 2 contracts
Samples: Share Purchase Agreement (Outdoor Products Spinco Inc.), Share Purchase Agreement (Outdoor Products Spinco Inc.)
Financing Cooperation. Upon (a) During the request period from the date of Parentthis Agreement through the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company shall provide, shall cause its Subsidiaries to provide, and shall use its commercially reasonable efforts to provide reasonable cause its Representatives (including its legal and accounting representatives) to provide, such cooperation as is reasonably requested by Parent or as is customary, necessary or advisable in connection with Parent’s efforts the arrangement, negotiation, obtainment and closing of the financing (the “Financing”) contemplated by the commitment letters (including the Debt Commitment Letter), facility agreements and other agreements (the “Financing Agreements”) or, if applicable, any alternative financing (the Financing or any alternative financing, as the case may be, is referred to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (in this Section 5.12 as the “Debt Respective Financing”); provided that such cooperation does not unreasonably interfere with , including by (i) (A) causing the ongoing operations participation of management of the Company and its Subsidiaries. Such Subsidiaries (including for participation at a reasonable number of organizational meetings, presentations, drafting sessions, due diligence meetings, ratings agency meetings, road shows and meetings with prospective Financing Sources), (B) causing management of the Company and its Subsidiaries to make reasonably available documents and information of the Company and its Subsidiaries as may be reasonably requested by Parent or its lender and any ratings agencies, including financial statements and financial and other information upon request therefor, and (C) using commercially reasonable efforts shall includeto cause the participation of the Company’s independent accountants to provide such services as may be reasonably necessary in respect of the Respective Financing, to the extent permissible under Law and their professional standards, (ii) using commercially reasonable efforts to cause the Company’s independent accountants to provide consent to the use of the Audited Financial Statements in the offering documents, (iii) providing reasonable assistance with respect to the review and granting of any security interests in and/or pledging of collateral for and providing of guarantees supporting the Respective Financing and obtaining any consents associated therewith, (iv) providing (or using commercially reasonable efforts to cause its advisors to provide) reasonable assistance to Parent and its Financing Sources in the preparation of (A) offering and syndication documents (including public and private information memoranda and lender presentations), private placement memoranda, bank information memoranda, offering memoranda, prospectuses and supplements thereto, lender and investor presentations, representation letters, and similar documents for any portion of the Respective Financing (in the case of any marketing materials to be used in connection with the issuance of securities, having regard to the requirements of applicable securities Laws and market practice in the context of a public offering of securities), (B) materials for rating agency presentations and (C) business projections and similar marketing documents reasonably required in connection with the Respective Financing (including a customary confidential information memorandum), (v) preparing and/or negotiating, executing and delivering (or using commercially reasonable efforts to obtain from its advisors), and causing its Affiliates to execute and deliver (or use commercially reasonable efforts to obtain from their advisors), customary financing agreements, including credit agreements, note purchase agreements, underwriting and purchase agreements, customary certificates, accountants’ comfort letters (and consents of accountants for use of their reports in any materials relating to the Respective Financing and in connection with any filings required to be made by Parent pursuant to the Securities Act of 1933 or the Securities Exchange Act of 1934 where the financial statements of the Company and its Subsidiaries or any of the other Required Information is included or incorporated by reference), or other documents and instruments relating to guarantees and other matters ancillary to the Respective Financing as may be reasonably requested by Parent as necessary and customary in connection with the Respective Financing, (vi) delivering such financial statements required pursuant to the second paragraph of Section 5 of Exhibit C to the Debt Commitment Letter and other customary financing deliverables, including insurance certificates and a solvency certificate, as required in connection with the Respective Financing, (vii) if applicable, by otherwise reasonably cooperating with Parent’s Financing Sources (including the Lenders) in achieving a timely offering and/or syndication of the funding for the Respective Financing, (viii) assisting Parent to obtain customary consents for the consummation of the Respective Financing, (ix) providing Parent with any financial statements of the Company or its Subsidiaries required to be provided after the date hereof to the trustee under the Senior Notes Indenture, (x) using commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel ensure that the syndication efforts for the Respective Financing benefit from the existing lending relationships of the Company and its Subsidiaries, (bxi) provideproviding, no later than five Business Days prior to Closing, all documentation and other information as promptly as has been reasonably practicablerequested in writing at least 10 Business Days prior to Closing by the Financing Sources that they reasonably determine is required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, information relating to including without limitation the Company PATRIOT Act and its Subsidiaries to any financing institutions contemplated to arrange (xii) obtaining such documentation and/or provide all or any portion of the Debt Financing (the “Financing Sources”) taking such steps (including information payoff letters, lien releases and instruments of termination or discharge) reasonably requested by Parent in order to pay in full all existing indebtedness contemplated herein to be used paid in full at Closing (including the preparation of a customary information package regarding Closing Date Indebtedness) and to release all liens over the business, operations, financial condition, projections properties and prospects assets of the Company and its Subsidiaries customary for financings similar securing such indebtedness. The Company shall promptly supplement the information provided to the Debt Financing) Parent or its Financing Sources pursuant to this Section 5.12 to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with information would be incorrect in any material respect to matters relating to pledges of collateral to take effect if such information were being furnished at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SECtime. Anything in this Section 5.13 Notwithstanding anything to the contrary notwithstandingset forth herein, until the Effective Time occurs, neither the Company nor Parent and Merger Sub acknowledge and agree that any of its Subsidiaries, nor any of their respective officers breach or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred alleged breach by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, of this Section 5.135.12 shall not constitute a failure of a condition to Closing under Article VI, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement including a failure of the Debt Financing condition set forth in Section 6.2(b), unless such breach is willful and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financingmaterial.
Appears in 1 contract
Financing Cooperation. Upon To complete the request of ParentMerger, the Company shall JD Sports is pursuing debt financing pursuant to certain debt financing commitment letters. Finish Line and its subsidiaries will use its commercially reasonable best efforts to provide reasonable provide, and cause their representatives to provide, such cooperation that is reasonably requested by JD Sports to assist with obtaining financing for the Merger. Such cooperation may include: • participation in meetings, lender calls, presentations and similar sessions with prospective lenders and rating agencies; • providing information reasonably requested in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall include, to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding materials required for the business, operations, financial condition, projections and prospects of financing; • assisting with the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including definitive agreements with respect to the auditor financing, including assistance with required disclosures; • facilitating field examinations or other due diligence review by JD Sports’ lenders; • obtaining such consents, approvals, authorizations and instruments as may be reasonably requested to permit the consummation of the financing; • facilitating the post-closing pledging of or grants of encumbrances on any of Finish Line’s or its subsidiaries’ assets as collateral for the debt financing; • executing and delivering customary agreements and instruments, provided each is not effective until after the effective time; • seeking comfort letters from accountants, consents in connection with any filings with the SEC. Anything in this Section 5.13 and opinions as reasonably requested; and • taking all corporate actions, subject to the contrary notwithstandingoccurrence of the effective time, until reasonably requested by JD Sports. Efforts to Complete the Effective Time occursMerger Subject to certain limitations, neither the Company nor any of its Subsidiaries, nor any of Finish Line and JD Sports have each agreed to use their respective officers reasonable best efforts to take, or directorscause to be taken, as all actions necessary, proper or advisable to consummate and make effective, in the case may bemost expeditious manner practicable, shall (i) be required the merger and the other transactions contemplated by the Merger Agreement. These reasonable best efforts include taking certain steps to pay secure necessary consents, approvals, waivers and authorizations of governmental authorities and third parties. Certain Litigation Finish Line and JD Sports have agreed to promptly advise the other of any commitment litigation commenced or other similar fee, (ii) enter into threatened by a shareholder of Finish Line against any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related party to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company Merger Agreement or any of its Subsidiaries with respect affiliates relating to the Debt Financing. Parent shall promptlyMerger Agreement, upon request by the Companymerger, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of the other transactions contemplated by the Merger Agreement, which is referred to herein as the “transaction litigation.” Finish Line will be entitled to control the defense or settlement of any transaction litigation, provided that Finish Line must give JD Sports a reasonable opportunity to participate (at its Subsidiaries own expense) in the defense of any such action, must keep JD Sports informed as to the status thereof and may not settle, compromise or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and cease defending against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any such transaction litigation without the prior written consent of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt FinancingJD Sports.
Appears in 1 contract
Samples: Agreement and Plan of Merger
Financing Cooperation. Upon (a) Buyer shall: (i) use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or desirable, to (A) satisfy the request conditions of Parentthe Commitment Letter that are within its control, (B) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Commitment Letter and (C) obtain at the Closing the debt financing contemplated by the Commitment Letter (the “Debt Financing”); and (ii) not amend, modify or terminate, or agree to amend, modify or terminate, the Company Commitment Letter without the prior written consent of the Designated Representative if such amendment, modification or termination would materially delay the Closing or materially and adversely affect the ability of the Buyer to consummate the transactions contemplated by this Agreement; provided, however, that if funds in the amounts and on the terms set forth in the Commitment Letter become unavailable to Buyer on the terms and conditions set forth therein, Buyer shall use its commercially reasonable efforts to provide reasonable cooperation in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall include, to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any obtain alternative debt financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing SourcesAlternative Financing”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or available in amounts and otherwise on terms and conditions no less favorable in the Financing Sources aggregate to assist Buyer than as set forth in preparation of customary offering or information documents to be used for the completion of the Debt Commitment Letter; provided, that if Buyer proceeds with Alternative Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to it shall be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior subject to the Effective Time), (dsame obligations as set forth in this Section 5.14(a) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with Debt Financing and the SEC. Anything in this Section 5.13 MBS Parties shall be subject to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, same obligations as the case may be, shall (iset forth in Section 5.14(b) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent Buyer shall promptly, upon request by keep the Company, reimburse the Company for all reasonable MBS Parties apprised of material and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of adverse developments relating to the Debt Financing and shall promptly notify the MBS Parties if the Debt Financing becomes unavailable in the manner contemplated in the Commitment Letter. Buyer shall provide to the MBS Parties copies of any information used in connection therewith commitment letter associated with a replacement Debt Financing or Alternative Financing as well as any amendment or waiver of any debt commitment letter (other than information provided by including the Company or any of its SubsidiariesCommitment Letter) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financingthat is permitted hereunder.
Appears in 1 contract
Samples: Purchase Agreement (Barnes & Noble Education, Inc.)
Financing Cooperation. Upon the request of ParentThe Acquired Companies agree, the Company shall and agree to cause their respective Affiliates, to use its their commercially reasonable efforts to provide reasonable cooperation in connection with Parent’s efforts such assistance (and to arrange cause their respective personnel and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that advisors to provide such cooperation does not unreasonably interfere assistance) with the ongoing operations of the Company and its SubsidiariesDebt Financing as is reasonably requested by Buyer. Such commercially reasonable efforts shall include, to the extent reasonably requested by Parentbut not be limited to, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay participation in, and assistance with, any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document marketing efforts related to the Debt Financing; (ii) participation by senior management of the Acquired Companies in, and assistance with, the preparation of rating agency presentations, lender presentations and bank information memoranda, and meetings with rating agencies; and (iii) unless promptly reimbursed by Parent, delivery to Buyer of the Debt Financing Deliverables (it being understood for the avoidance of doubt that the Acquired Companies shall only be required to incur any other expenses use commercially reasonable efforts to deliver the Debt Financing Deliverables); and (iv) taking such actions as are reasonably requested by Buyer to facilitate the satisfaction on a timely basis of all conditions precedent to obtaining the Debt Financing that are within the control of the Acquired Companies. The Acquired Companies hereby consent to the use of all of their and their respective subsidiaries’ logos in connection with the Debt Financing Financing; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Acquired Companies or their reputation or goodwill. Notwithstanding any other provision set forth herein or in any other agreement between Acquired Companies and Buyer (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives Affiliates), the Acquired Companies (on their behalf and on behalf of their Affiliates) agree that Buyer and its Affiliates may share non-public or confidential information regarding the Acquired Companies and their businesses with the financing sources identified in the Debt Engagement Letter and the Debt Financing Amendment, and that Buyer, its Affiliates and such financing sources may share such information with potential financing sources in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by marketing efforts (including any of them syndication) in connection with the arrangement Available Financing; provided that the recipients of such information agree to customary confidentiality arrangements. Notwithstanding anything to the contrary herein, (i) it is understood and agreed that the condition precedent set forth in Section 8.2(b), as applied to the Acquired Companies’ obligations under this Section 7.17, shall be deemed to be satisfied unless the Debt Financing has not been obtained as a result of the Acquired Companies’ gross negligence, fraud, willful misconduct or material breach of their obligations under this section; and (ii) it is understood and agreed that Buyer's performance of its obligations under this Agreement is expressly not contingent upon the securing of any information used in connection therewith (other than information provided by financing, including the Company Debt Financing, and that Buyer has no rights to either terminate this Agreement or to extend the date of Closing as a result of its failure to obtain, or any of its Subsidiaries) and all other actions taken by delay in obtaining, any financing, including the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing.
Appears in 1 contract
Financing Cooperation. Upon Prior to the request of ParentClosing and in connection with the private placement or placements to be consummated by KLRE in connection with the Closing and the Transactions (the “Equity Financing”), the Company Tema shall use its commercially reasonable best efforts to provide to KLRE, and shall cause the Company to use its reasonable best efforts to provide, and shall use its reasonable best efforts to cause its and the Company’s representatives, including legal and accounting representatives, to provide, all cooperation reasonably requested by KLRE that is customary in connection with Parent’s efforts to arrange and consummate completing any amendment tofinancing activities, or with obtaining such consents as are required to be obtained under Tema’s revolving credit facility and any other Indebtedness of the Company that would become due and payable at the Closing as a result of the consummation of the Transactions, or obtaining new replacement debt financing to replace such Indebtedness (such consent or supplement ofnew replacement debt financing, Parent’s credit facilities (the “Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially , which reasonable efforts shall include, to the extent reasonably requested by Parentamong other things, commercially reasonable efforts to: (a) make available to prospective lendersfurnishing KLRE, on a customary and reasonable basis and upon reasonable noticereasonably promptly following KLRE’s request, appropriate personnel of with information regarding the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary one or more information package packages regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries Company) customary for financings similar to the Debt Financing) such financing activities, to the extent reasonably requested by Parent and/or available to the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt FinancingCompany, (cb) assist in causing the obtaining management and other representatives with appropriate seniority and expertise of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens Tema and the pledges Company to participate in a reasonable number of collateral securing meetings (including customary one-on-one meetings with the parties acting as lead arrangers, bookrunners or agents for, and prospective lenders of, such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Timefinancing), (d) cooperate presentations, due diligence sessions, drafting sessions and sessions with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered rating agencies in connection with such financing activities, (c) assisting with the preparation of materials for rating agency presentations, bank information memoranda, and similar documents required in connection any such financing activities, (d) using reasonable efforts to obtain legal opinions reasonably requested by KLRE in order to consummate such financing activities, (e) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by KLRE or any financing sources of KLRE or the Company to permit the consummation of such financing activities and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including cooperating with respect requests for due diligence to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable extent customary and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financingreasonable.
Appears in 1 contract
Samples: Business Combination Agreement (KLR Energy Acquisition Corp.)
Financing Cooperation. Upon (a) Prior to the request of ParentClosing, the Company shall, and shall cause its Subsidiaries to, use its commercially reasonable best efforts to provide reasonable to Parent and Merger Sub, at Parent’s sole expense, all cooperation reasonably requested by Parent that is customary or necessary in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities obtaining financing in connection with the Merger (“Debt Financing”); provided that so long as such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially ), including, upon the reasonable efforts shall include, to the extent reasonably requested by request of Parent, commercially reasonable efforts to: (ai) make available preparing and furnishing to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, Parent any pertinent information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including that is customarily included in an information to be package used in connection with the preparation syndication of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings financing in connection with transactions similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt FinancingMerger, (cii) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that having the Company shall have no obligation designate members of senior management to pay or discharge any such indebtedness prior to the Effective Time)participate with reasonable advance notice and at reasonable times in a reasonable number of presentations, (d) cooperate due diligence sessions, drafting sessions and sessions with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents ratings agencies in connection with any filings with such financing, and (iii) providing to Parent the SECresolutions of the Company Board approving this Agreement, the Merger and the transactions contemplated hereby, and recommending the adoption of this Agreement by the stockholders of the Company. Anything Notwithstanding anything to the contrary in this Section 5.13 to the contrary notwithstanding, 6.13 until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, Representatives shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financingfinancing in connection with the transactions contemplated hereby, in each case that is not contingent upon the Closing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing such financing or (iv) be required to take any action in his/his or her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financingsuch financing. Parent shall promptly, upon request by the Company, promptly reimburse the Company for all reasonable and documented out of out-of-pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.136.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing Parent’s financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.136.13. Parent and Merger Sub shall keep the Company informed reasonably informed, on a reasonably current basis in reasonable detail of the status of its efforts to arrange and consummate Parent’s financing (or any Debt Financingalternative or other contemplated financing for the transactions contemplated by this Agreement), including any material change in Parent’s plans or intentions as previously notified, regarding such financing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (International Rectifier Corp /De/)
Financing Cooperation. Upon the request of Parent(a) The Company shall, the Company and shall cause its subsidiaries and its and their respective Representatives to, use its and their respective commercially reasonable efforts to provide reasonable such cooperation as may be reasonably requested by Parent or Merger Sub in connection with Parent’s the Debt Financing made by Parent or any of its subsidiaries, including, as applicable, by: (i) using reasonable best efforts to arrange and consummate any amendment to, or replacement or supplement ofupon reasonable advance notice, Parentcause the Company’s credit facilities (“senior management to participate in a reasonable number of due diligence meetings, drafting sessions, rating agency presentations, lender meetings, investor road shows and meetings with parties acting as arrangers, bookrunners, underwriters, initial purchasers, placement agents and/or other lenders and investors for the Debt Financing”); provided that (ii) providing such cooperation does not unreasonably interfere customary historical financial and other customary pertinent information with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall include, to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating respect to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of subsidiaries (including, without limitation, information required by Regulation S-X and Regulation S-K under the Securities Act) as may be reasonably requested by Parent for use in connection with the Debt Financing (the “Financing Sources”) (including and designating, upon request, whether any such information is suitable to be used in the preparation of a customary made available to lenders and other investors who do not wish to receive material non-public information package regarding the business, operations, financial condition, projections and prospects of with respect to the Company and its Subsidiaries customary for financings similar to subsidiaries; (iii) providing information regarding the Debt Financing) to the extent Company and its subsidiaries reasonably requested by Parent and/or the Financing Sources necessary to assist Parent in preparation of preparing pro forma financial statements if Parent determines such pro forma financial statements are legally required or customary offering or information documents to be used for the completion of in connection with the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company need only assist in the preparation thereof, but shall have no obligation not be required to pay or discharge independently prepare any such indebtedness prior separate pro forma financial statements and shall not be required to change its fiscal year; (iv) providing reasonable assistance to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time Parent and its subsidiaries in connection with such financingthe preparation by the Parent of offering memoranda, private placement memoranda, prospectuses, prospectus supplements, registration statements, bank confidential information memoranda, lender and investor presentations, road show materials, rating agency presentations and similar documents and materials, in each case, under this subsection (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiariesiv), including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or and reasonably assisting with the preparation of the definitive documents for the Debt Financing, including by providing information reasonably necessary for the completion of any schedules thereto, in each case to the extent, and solely to the extent, such materials relate to information concerning the Company and its subsidiaries; (ivv) be required using commercially reasonable efforts to take any action cause the Company’s accountants to cooperate with Parent, including by participating in his/her capacity as a director accounting due diligence sessions upon reasonable advance notice, using reasonable best efforts to obtain the consent of, the Company’s accountants (including by providing customary for Parent’s use of the financial statements of the Company and its subsidiaries in any marketing or any of its Subsidiaries with respect offering materials to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them be used in connection with the arrangement of the Debt Financing and Financing; (vi) cooperating reasonably with any information used in connection therewith (other than information provided customary due diligence requests by the Company or any of its Subsidiaries) and all other actions taken by the CompanyParent, its Subsidiaries Financing Sources and their respective Representatives pursuant to this Section 5.13. counsel; (vii) reasonably assisting Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing.in obtaining corporate, family, credit, facility -45-
Appears in 1 contract
Samples: Agreement and Plan of Merger (Diversified Restaurant Holdings, Inc.)
Financing Cooperation. Upon Prior to the request Closing or termination of Parentthis Agreement, at Buyer’s sole cost and expense, Sellers shall, and shall cause the Acquired Companies and each of the Sellers’, the Company shall Company’s, such Subsidiaries’, and their respective Affiliates’ directors, officers, managers, representatives, auditors, and advisors to, provide reasonable cooperation to Buyer and its Affiliates in the arranging of any debt financing of the Buyer, the Company, or the Company’s Subsidiaries, and to use its their respective commercially reasonable efforts (a) to provide cause appropriate officers and employees of the Acquired Companies (i) to be available on a customary basis to meet with prospective lenders, rating agencies and investors in presentations, meetings, road shows and due diligence sessions, (ii) to assist with the preparation of disclosure documents, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations, projections and similar documents in connection therewith, (iii) furnishing Buyer and its Financing Sources with financial statements and financial and other pertinent information regarding the Acquired Companies as may be reasonably requested by Buyer to consummate the financing, (iv) to execute and deliver any definitive financing documentation, security documents, hedging arrangements, customary certificates, legal opinions (which may be reasoned, if counsel reasonably believes it cannot give the opinion otherwise) or other documents as may be reasonably requested by Buyer in connection with the financing, in each case which will become effective only on or after the Closing, (v) to take such reasonable actions as may be required to facilitate the pledge of collateral to secure the financing (including cooperation in connection with Parent’s efforts the pay‑off of existing Indebtedness and the release of Liens related thereto), (vi) to arrange obtain all waivers, consents and consummate approvals from other parties to contracts and liens to which the Acquired Companies are a party or by which any amendment toof them or their assets or properties are bound or subject, or replacement or supplement of, Parent’s credit facilities and (“Debt Financing”); provided that such cooperation does not unreasonably interfere with vii) to take all other actions necessary to permit the ongoing operations consummation of the Company financing and its Subsidiaries. Such commercially reasonable efforts shall include(b) to cause the independent certified public accountants of the Acquired Companies to provide assistance to Buyer, to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lendersincluding providing consent, on a customary and reasonable basis and upon reasonable noticebasis, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information to Buyer to use their audit reports relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the businessAcquired Companies and, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation cost of Buyer, to pay or discharge provide any such indebtedness prior necessary “comfort letters” and to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining prepare and deliver other customary legal opinions to be delivered in connection with such financing documents and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SECinstruments. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing.6.22
Appears in 1 contract
Financing Cooperation. Upon the request of Parent, the Company (a) Parent and Merger Sub shall use its commercially reasonable best efforts to provide take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to arrange, consummate and obtain the Equity Financing on the terms and subject only to the conditions described in the Equity Financing Commitment, including by (i) maintaining in effect the Equity Financing Commitment, (ii) satisfying on a timely basis (or obtaining waivers of) all conditions applicable to Parent and Merger Sub in the Equity Financing Commitment and complying with its obligations thereunder, (iii) using reasonable best efforts to cause the Guarantors to comply with their respective obligations thereunder, and (iv) enforcing its rights under the Equity Financing Commitment in a prompt and diligent manner. (b) The Company shall, and shall cause its Subsidiaries and its and their Representatives to, provide, in each case at Parent’s sole cost and expense, all such assistance and cooperation as Parent and/or the Debt Financing Source Parties may reasonably request that is necessary or advisable in connection with Parent’s obtaining the Debt Financing and the transactions contemplated by this Agreement, including (i) using reasonable best efforts to arrange cooperate with the marketing efforts of Parent and consummate any amendment tothe Debt Financing Source Parties and assisting in the preparation of a customary bank information memorandum (including the execution and delivery of customary representation letters in connection therewith) and materials for rating agencies, (ii) upon reasonable prior notice, making appropriate senior management of the Company, its Subsidiaries and its and their Representatives reasonably available for participation in customary syndication, presentations, lender or replacement proposed financing source meetings and calls (including customary one- on-one meetings with the parties acting as lead arrangers or supplement agents for, and prospective lenders and purchasers of, Parent’s credit facilities (“the Debt Financing”); provided that such cooperation does not unreasonably interfere , rating agency presentations and due diligence sessions (including accounting due diligence sessions) at times mutually agreed, (iii) using reasonable best efforts to assist Parent in connection with the ongoing operations preparation of the Company pro forma financial information, financial statements, lender and its Subsidiaries. Such commercially reasonable efforts shall include, investor presentations and business projections to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) Sources and each other Person (including information each agent, arranger, lender and other entity) that arranges, commits to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering provide or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter has otherwise entered into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses agreements in connection with the Debt Financing, including any commitment letters, joinder agreements or credit agreements relating thereto, together with each Affiliate thereof and each officer, director, employee, partner, controlling person, advisor, attorney, agent and representative of each such lender, other Person or Affiliate (collectively, the “Debt Financing or Sources”), (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing.as
Appears in 1 contract
Samples: Agreement and Plan of Merger (Sharps Compliance Corp)
Financing Cooperation. Upon the request of Parent(a) Seller shall, the Company shall at Buyer’s sole expense, use its commercially reasonable efforts to provide cooperate (and use commercially reasonable cooperation in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of cause the Company and its Subsidiaries. Such commercially reasonable efforts shall include, to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens Seller’s and the pledges of collateral securing such Existing Credit FacilitiesCompany’s respective officers, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may beemployees, shall (iaccountants and other advisors to cooperate) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing as may be reasonably requested by Buyer, including (i) causing the appropriate participation by members of management of the Business on reasonable advance notice and any at reasonable locations in a reasonable number of meetings (including virtual meetings), conference calls, presentations, due diligence sessions and sessions with prospective lenders in connection with the Debt Financing, (ii) assisting Buyer and the Debt Financing Sources in the preparation of customary lender presentations and other marketing materials used to arrange the Debt Financings, (iii) furnishing Buyer and the Debt Financing Sources as promptly as practicable with (x) financial information reasonably required or requested in connection with the preparation of customary pro forma financial statements to be used in connection therewith with arranging the Debt Financing (provided that the preparation of such pro forma financial statements shall be the sole responsibility of Buyer and Seller shall have no responsibility therefor) and (y) the Required Information, (iv) at least three (3) Business Days prior to the Closing Date, providing all documentation and other information about the Business (including the Company) as is reasonably requested in writing by Buyer at least nine (9) Business Days prior to the Closing Date which relates to applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation (31 C.F.R. § 1010.230), (v) obtaining customary releases (the “Releases”) from all Encumbrances and guarantees to which the Business (including the Company) is subject pursuant to the agreements and instruments described on Section 3.05 of the Disclosure Schedule (the “Closing Date Indebtedness”), which Releases shall (x) evidence the authority of Buyer to make any filings and take other customary actions necessary or appropriate to give effect to, or evidence, the release of any Encumbrances on the Business (including the Company) relating to such Closing Date Indebtedness, (y) be effective on or prior to the Closing Date and (z) otherwise be in form and substance reasonable satisfactory to Buyer, and (vi) facilitating the pledging of collateral (including the delivery of original share certificates, together with share powers executed in blank, with respect to the Company) as may be reasonably requested by Buyer; provided, that (a) nothing herein shall require such cooperation to the extent it would interfere unreasonably with the ongoing operations of Seller, the Company, or the Business, (b) Seller, the Company or its or their respective Affiliates shall not be required to take any action that would reasonably be expected to (1) result in a breach of any Material Contract or (2) subject it to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment (other than information provided by reasonable out-of-pocket costs which are promptly reimbursed pursuant to this Section 4.11) or incur any other liability of any kind or provide or agree to provide any indemnity in connection with the Debt Financing or any of the foregoing, in each case prior to the Closing, (c) neither Seller or the Company nor any of its Subsidiaries shall be required to commit to take any action that is not contingent upon the Closing (including the entry into any agreement or execution or delivery of any document, instrument or certificate) or that would be effective prior to the Closing, and (d) none of the boards of directors (or equivalent bodies) of Seller, the Company or any of its Subsidiariesor their respective Subsidiaries shall be required to enter into any resolutions or take similar action approving the Debt Financing (except that concurrently with the Closing the board (or its equivalent body) of the Company agrees to sign resolutions or take similar actions that do not become effective until the Closing). Buyer shall promptly reimburse Seller for any out-of-pocket expenses and all other actions taken by costs reasonably incurred in connection with its obligations under this Section 4.11. Seller hereby consents to the use of any logos of the Business (including the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep ) in connection with the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing; provided, that the logos are used solely in a manner that is reasonable and customary and that is not intended, or reasonably likely, to harm or disparage Seller, the Business or the reputation or the goodwill of Seller or the Business in any respect.
Appears in 1 contract
Samples: Purchase Agreement (Allscripts Healthcare Solutions, Inc.)
Financing Cooperation. Upon Prior to the request of ParentClosing, the Company Parent shall use its commercially reasonable best efforts to provide to Purchaser all reasonable cooperation reasonably requested by Purchaser that is necessary in connection with Parent’s efforts to arrange and consummate any amendment to, debt or replacement or supplement of, Parent’s credit facilities equity financing sought by Purchaser in connection with the transactions contemplated by this Agreement (the “Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially , including (x) using reasonable best efforts shall include, to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lendersparticipate, on a customary and at reasonable basis times and upon reasonable notice, appropriate personnel in a reasonable number of meetings (including customary meetings with the Company parties acting as lead arrangers or agents for, and its Subsidiariesprospective lenders and/or purchasers of debt or equity securities), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Financing, (b) provideassist Purchaser and its Financing Sources in the preparation of customary offering memoranda, as promptly as reasonably practicablebank information memoranda, information rating agency presentations and lender presentations relating to the Company Financing, (c) cooperate with the marketing efforts of Purchaser and its Subsidiaries to any financing institutions contemplated to arrange and/or provide Financing Sources for all or any portion of the Debt Financing Financing, (the “d) provide and execute documents as may be reasonably requested by Purchaser or its Financing Sources”, (e) execute and deliver any pledge and security documents and otherwise facilitate the pledging of collateral, and (including f) provide such information to be used in the preparation about powers of a customary information package regarding the business, operations, financial condition, projections and prospects attorney executed on behalf of the Company Transferred Entities as may be reasonably requested by Purchaser or its Financing Sources, and its Subsidiaries (y) using commercially reasonable efforts to assist in obtaining accountant’s comfort letters and legal opinions reasonably requested by Purchaser and customary for financings similar to the Debt any Financing; provided, however, that, (i) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion irrespective of the Debt Financingabove, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay of Parent, Seller or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers Affiliates under any certificate, document or directorsinstrument shall be effective until the Closing and none of Parent, as the case may be, Seller or any of their respective Affiliates shall (i) be required to pay take or commit to take any commitment action under any certificate, document or other similar feeinstrument that is not contingent upon the Closing (including the entry into any agreement that is effective before the Closing) or that would be effective prior to the Closing, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related nothing herein shall require such cooperation to the Debt Financingextent it would interfere unreasonably with the business or operations of Parent, Seller or their respective Affiliates (including, without limitation, the Transferred Entities) or encumber any assets of such Persons, (iii) unless promptly reimbursed by none of Parent, Seller or their respective Affiliates shall be required to incur issue any other expenses in connection with the Debt Financing offering or information document, (iv) none of Parent, Seller or any of their respective Affiliates shall be required to take or permit the taking of any action in his/her capacity as a director pursuant to this Section 6.13 that would (A) cause any director, officer, employee or stockholder of the Company Parent or any of its Subsidiaries Affiliates to incur any personal liability, (B) conflict with respect to the Debt Financing. organizational documents of Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company Affiliates or any of its Subsidiaries) and all other actions taken by the CompanyLaws, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing.or
Appears in 1 contract
Financing Cooperation. Upon 5.17.1. Prior to Closing, upon the request of ParentBuyers, Sellers and the Company Companies shall, and shall cause their respective subsidiaries and Representatives to, use its commercially reasonable efforts to provide reasonable cooperation cooperate in connection with Parent’s efforts to arrange and consummate any amendment tothe Financing, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall include, to the extent reasonably requested by Parent, including using commercially reasonable efforts to: (ai) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel cause management teams of the Company Companies, with appropriate seniority and its Subsidiariesexpertise, to participate in meetings, due diligence sessions and rating agency presentations and road shows, if any, (bii) provide, prepare and furnish to Buyers as promptly as practicable the Required Information and any other financial or other pertinent information regarding the Companies reasonably practicablerequested by Buyers to consummate the Financing; (iii) cause the independent accountants of the Companies to provide reasonable assistance to Buyers, information consistent with their professional practice, including by participating in accounting due diligence sessions, to provide their consent to use of their audit reports relating to the Company Companies on customary terms and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) deliver customary comfort letters (including information as to be used negative assurance and change period comfort); (iv) assist in the preparation of a customary information package regarding the businesspro forma financial information, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing(v) to the extent reasonably requested by Parent and/or permit the Financing Sources to assist conduct reasonable due diligence (including conducting customary field exams and appraisals and using commercially reasonable efforts to provide relevant information or documentation reasonably requested in preparation connection therewith); (vi) furnish promptly all documentation and other information required by any Governmental Authority or as reasonably requested by any Financing Source under applicable “know your customer” or anti-money laundering rules and regulations, including the PATRIOT Act, (vii) execute and deliver any definitive financing documents, including any necessary pledge and security documents, guarantees, deposit account control agreements, blocked account control agreements, subordination agreements with respect to intercompany indebtedness, and other collateral documents covering the Assets and the Interests as reasonably requested by Buyers, furnishing exhibits to such instruments (and using commercially reasonable efforts to provide relevant information or documentation reasonably requested in connection therewith) and otherwise facilitating the pledging of customary offering or information documents collateral in connection with the Financing, including taking reasonable actions necessary to be used permit the Financing Sources to evaluate the Assets and the Interests for the completion purpose of establishing collateral arrangements, and providing customary title information; provided that no obligation of the Debt FinancingCompanies under any such definitive financing documents, including any pledge and security documents, guarantees, deposit account control agreements, blocked account control agreements, subordination agreements regarding intercompany indebtedness or other collateral documents shall be effective until the Closing Date; (cviii) assist in the obtaining of seek to obtain customary payoff letters letters, lien terminations and releases and instruments of discharge to be delivered at Closing to allow providing for the payoff, discharge and termination in full on the Closing Date of all Indebtedness and release of liens contemplated by any repayment or refinancing of such Indebtedness to be paid off, discharged and terminated on the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood Closing Date; provided that the Company documents in respect of such arrangements contemplated by this clause (viii) shall have no obligation not need to pay or discharge any such indebtedness prior be effective until the Closing Date; and (ix) obtaining customary evidence of authority, customary officer’s certificates and using commercially reasonable efforts to obtain customary insurance certificates and insurance endorsements to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request extent reasonably requested by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt FinancingSources.
Appears in 1 contract
Samples: Securities Purchase Agreement (Nine Energy Service, Inc.)
Financing Cooperation. Upon (i) Prior to the request of ParentClosing, the Company shall use its reasonable best efforts to provide to Parent and Merger Sub, and shall cause each of its Subsidiaries to use its reasonable best efforts to provide, and shall use reasonable best efforts to cause its Representatives, including legal and accounting, to provide (in each case at Parent’s sole expense) all cooperation reasonably requested by Parent that is customary in connection with the arrangement of the Debt Financing, including, but not limited to using reasonable best efforts to, (i) assist in preparation for and participate (and use commercially reasonable efforts to provide cause senior management to participate) in a reasonable cooperation number of meetings (but no more than two (2) in person “bank meetings” and additional telephonic meetings at reasonably agreed times), due diligence sessions, drafting sessions, road shows, and presentations with prospective lenders and rating agencies, and otherwise using commercially reasonable efforts to cooperate with the marketing efforts for the Debt Financing, (ii) assist with the timely preparation of customary materials for bank information memoranda and ratings agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), and similar documents required to be delivered in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities the Debt Commitment Letter as in effect on the date hereof (“Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall include, including executing a customary authorization letter to the extent reasonably requested required by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, the Debt Commitment Letter as in effect on a customary and reasonable basis and upon reasonable notice, appropriate personnel the date hereof authorizing the distribution of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to about the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion prospective lenders), (iii) furnish Parent with the historical financial statements of the Company identified in paragraph 6 of Exhibit C of the Debt Financing Commitment Letter as in effect on the date hereof (subject to the immediately following proviso, the “Required Financial Information”), (iv) provide Parent and Merger Sub with information reasonably necessary to complete customary perfection certificates and other customary loan documents as may be required in connection with the Debt Financing Sources”as may be reasonably requested by Parent or the Merger Sub, (v) assist Parent in delivering original stock certificates, if any, and original stock powers (or, if any, similar documents for limited liability companies) to the extent required on or prior to the Closing Date by the Debt Commitment Letter as in effect on the date hereof (including information assisting in obtaining copies thereof prior to be used the Closing Date) and assist Parent in obtaining insurance certificates from the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects insurance policy underwriters of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent required on or prior to the Closing Date by the Debt Commitment Letter as in effect on the date hereof, and (vi) take reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably requested by Parent and/or necessary to permit the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion consummation of the Debt Financing; provided, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation not be required to pay provide, or discharge cause its Subsidiaries or Representatives to provide, cooperation under this Section 7.13(e) that: (A) unreasonably interferes with the ongoing business of the Company or its Subsidiaries; (B) causes any such indebtedness covenant, representation or warranty in this Agreement to be breached; (C) causes any condition set forth in Article VIII to fail to be satisfied or otherwise causes the breach of this Agreement; (D) requires the Company or its Subsidiaries, prior to the Effective Time)Closing, (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into fee or incur or become subject to any definitive agreement or have any other liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing which is not otherwise funded or promptly reimbursed by Parent; (ivE) requires the Company and its Subsidiaries or their respective directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document, certificate or instrument with respect to the Debt Financing and the directors and managers of the Company and its Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained; (F) requires the Company or its Subsidiaries to take any action in his/her capacity violation or conflict with any of the Company’s or its Subsidiaries’ respective Organizational Documents or applicable Law (G) requires the delivery of opinions of external or internal counsel; (H) requires the Company or its Subsidiaries to provide access to or disclose information that would reasonably be expected to jeopardize attorney-client privilege or contravene Law or violate any Contract; and (I) requires the Company or its Subsidiaries to waive or amend any terms of this Agreement or any other Contract to which the Company or its Subsidiaries is a party. So long as requested by Parent at least ten (10) days prior to the Closing Date, the Company will, and will cause each of its Subsidiaries to, furnish Parent and the Merger Sub promptly, and in any event at least two (2) Business Days prior to the Closing Date, all documentation and other information with respect to the Company and its Subsidiaries that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act. The Company hereby consents to the use of its and its Subsidiaries’ trademarks, service marks or logos in connection with the Debt Financing; provided, that such trademarks, service marks or logos are used solely in a director manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of their respective intellectual property rights. At least one (1) Business Day prior to the anticipated Closing Date, the Company will deliver to Parent a customary payoff letter or letters executed by the lenders of the Credit Agreement, which letter will set forth (a) the total amount required to be paid at the Effective Time to satisfy in full the repayment of all Indebtedness outstanding under the Credit Agreement and, if any, all prepayment penalties, premiums and breakage costs that become payable upon such repayment and any other fees or expenses outstanding thereunder (the “Payoff Amount“), (b) the lenders’ obligation to release all liens and other security securing the Credit Agreement in due course and at Parent’s expense after receiving the Payoff Amount, and (c) wire transfer instructions for paying the Payoff Amount. Notwithstanding the above, all corporate, limited liability or other organizational actions shall be deemed to become effective only if and when the Closing occurs and shall be derived exclusively from the authority of, and shall only be taken by, the board of directors of the Company and its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, other governing body of the Company and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with as constituted after giving effect to the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt FinancingClosing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Verifone Systems, Inc.)
Financing Cooperation. Upon (a) During the request period from the date of Parentthis Agreement to the Effective Time, the Company and its Subsidiaries shall, and the Company shall use its commercially reasonable best efforts to cause its and its Subsidiaries' respective Representatives to, provide reasonable to Parent and Merger Sub all cooperation that is reasonably requested by Parent in connection with Parent’s efforts the arrangement of debt and equity financings (including without limitation, any portion of the contemplated Financing) the proceeds of which shall be used to arrange and consummate any amendment tothe Transactions; provided, or replacement or supplement ofhowever, Parent’s credit facilities (“Debt Financing”); provided that no such requested cooperation does not may unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts cooperation shall include, without limitation, (i) furnishing Parent, Merger Sub and their Financing sources promptly with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Parent and identifying any portion of such information that constitutes material non-public information, (ii) in each case, upon reasonable notice and in reasonably convenient locations, making employees and other representatives of the Company (with appropriate seniority and expertise) available to participate in a reasonable number of meetings, presentations, due diligence sessions, drafting sessions and sessions with prospective financing sources, investors and rating agencies in connection with the extent Financing, (iii) assisting with the preparation of customary materials for rating agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), bank information memoranda, prospectuses and all other material to be used in connection with the Financing (including customary authorization and management representation letters) and all documentation and other information required in connection with applicable "know your customer" and anti-money laundering rules and regulations, including U.S.A. Patriot Act of 2001, (iv) using reasonable best efforts to obtain accountant's comfort letters as reasonably requested by Parent, (v) taking all corporate actions, including filing for any required consents or approvals, subject to and only effective upon the occurrence of the Effective Time, required to permit the consummation of the Financing and to permit the proceeds thereof to be made available to the Surviving Corporation immediately after the Effective Time, (vi) providing, as soon as prepared and made available to the Company management team, unaudited consolidated monthly financial statements of the Company (excluding footnotes) consisting of a balance sheet, income statement and statement of cash flows, (vii) filing a Quarterly Report on Form 10-Q within forty-five (45) calendar days after the end of each fiscal quarter end, which shall comply in all material respects with the applicable requirements of the Exchange Act and shall contain the Company's unaudited financial statements, (viii) permitting officers of the Company who will be officers of the Surviving Corporation after the Effective Time to execute and deliver any credit, pledge and security documents, other definitive financing documents, closing documents, including officer's certificates, secretary's certificates, legal opinions, corporate documents or evidence of authorization (but in each case, not effective prior to the Effective Time) as may be reasonably requested by Parent (including delivery of borrowing base certificates and a certificate of the chief financial officer of the Company with respect to solvency matters and using reasonable best efforts to obtain consents of accountants to use their reports in any materials relating to the Debt Financing) and otherwise reasonably facilitating the pledging of collateral, including without limitation, by taking all necessary action to facilitate the elimination of any Lien on any of the properties or assets of the Company or any of its Subsidiaries, other than Permitted Exceptions, (ix) using commercially reasonable efforts to: (a) make available to prospective lendersassist in delivery of inventory appraisals and field audits and obtaining of surveys and title insurance, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly all as reasonably practicable, information relating to the Company requested by Parent and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing, and otherwise cooperating reasonably with the Debt Financing sources' due diligence, (x) providing customary authorization letters to the extent reasonably requested by Parent and/or Debt Financing sources authorizing the distribution of information to prospective lenders and containing customary representations to the Debt Financing Sources sources that such information does not contain a material misstatement or omission and that the public side versions of such information, if any, do not include material non-public information about the Company or its Subsidiaries or their securities, and (xi) otherwise taking reasonable actions within its control to assist cooperate in preparation of customary offering satisfying the conditions precedent set forth in the Debt Commitment Letter or information documents any definitive document related to be used for the completion Financing; provided, however, that (A) no obligation of the Debt FinancingCompany or any of its Subsidiaries under any certificate, (c) assist in agreement, notice or other document or instrument shall be effective until the obtaining of customary payoff letters Effective Time, and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date none of the Existing Credit Facilities and releasing Liens and the pledges Company or any of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company its Subsidiaries shall have no obligation be required to pay or discharge incur any such indebtedness liability for any commitment or other similar fee, pay or incur any liability for any expense (other than as provided in this Agreement) or incur any other obligation or liability in connection with the Financing prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist unless promptly reimbursed by Parent in obtaining customary legal opinions to be delivered in connection with such financing and (fB) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers directors or directors, as the case may beofficers, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of to authorize or approve the Company Financing (or any of its Subsidiaries with respect to the Alternative Debt Financing. Parent shall promptly), upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company except at or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection contemporaneously with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt FinancingEffective Time.
Appears in 1 contract
Samples: Agreement and Plan of Merger (True Religion Apparel Inc)
Financing Cooperation. Upon (a) Subject to the request limitations set forth in Section 5.9(b), from the date hereof the through the earlier of Parentthe Closing Date and the date this Agreement is terminated, the Company shall, and shall cause its Subsidiaries to, and shall use its commercially reasonable efforts to provide cause its and their respective Representatives, including legal, Tax, regulatory and accounting Representatives, to use commercially reasonable efforts to provide, on a timely basis, all reasonable cooperation requested by Parent in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities debt financing sought by Parent in connection with the Mergers (the “Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall include, including, to the extent reasonably requested by Parent, commercially reasonable efforts to: Parent (aand subject to the limitations set forth in Section 5.9(b)): (i) make available to prospective lenders, on a customary promptly providing Parent with such financial and reasonable basis and upon reasonable notice, appropriate personnel of other pertinent information regarding the Company and its SubsidiariesSubsidiaries as Parent shall reasonably request in order to consummate the Financing; (ii) assisting in the preparation of customary marketing materials and cooperating with the marketing efforts for the Financing, (biii) providesubject to Section 5.9(e), taking actions reasonably requested by Parent in connection with the payoff of existing indebtedness of the Company Entities on the Closing Date and the release of related Liens on the Closing Date (including obtaining customary payoff letters, lien terminations and other instruments of discharge with respect to the Company Debt Instruments (as promptly defined below)), (iv) causing the taking of corporate and organizational actions reasonably necessary to permit the completion of the Financing, (v) providing cooperation with the Financing Sources’ and their respective agents’ due diligence investigation as reasonably practicablerequested by such Persons and as is customary in connection with lending or capital markets transactions, and using commercially reasonable efforts to cause its certified independent auditors to provide customary cooperation in connection with the Financing, including providing customary consents, reports and comfort letters for the financial information related to the Company Entities, (vi) providing the documentation and other information as reasonably requested by Parent for the purposes of (A) applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, in connection with the Financing and (B) procuring corporate and facilities ratings for the Financing, (vii) executing and delivering definitive financing documents, including any pledge agreements, guarantees and collateral documents, reasonably requested by Parent in connection with the Financing or other financing; (viii) providing customary projected financial information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent Entities as reasonably requested by Parent and/or to permit Parent to prepare pro forma financial statements required for the Financing or other financing; and (ix) taking actions reasonably requested by Parent to (A) permit the Financing Sources and prospective Financing Sources to assist in preparation of customary offering or information documents to be used evaluate the Company Entities and the assets, business, cash management and accounting systems, policies and procedures relating thereto, including inventory appraisals and field audits, for the completion purpose of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of establishing collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing arrangements and (fB) assist Parent in obtaining customary comfort letters establish bank and consents of the independent accountants of the Company other accounts and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses blocked account contracts and lock box arrangements in connection with the Debt Financing foregoing after the Closing. All non-public or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by otherwise confidential information regarding the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant toAffiliates obtained by Parent, and in accordance withMerger Sub, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives Financing Source pursuant to this Section 5.13. Parent and Merger Sub 5.9(a) shall keep be kept confidential in accordance with the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt FinancingConfidentiality Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Performance Food Group Co)
Financing Cooperation. Upon (a) Prior to Closing, upon the reasonable request of Buyer Parent, each of the Seller and the Company shall, and shall cause its Subsidiaries to, and shall use its commercially reasonable efforts to provide cause its and their respective officers, employees and other Representatives who are not its officers or employees to, in each case, use commercially reasonable cooperation efforts to cooperate with Buyer Parent in connection with Parent’s efforts to arrange any Financing, including any offering of securities, requested repayment or refinancing of Indebtedness, and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall include, to the extent reasonably requested by Parent, commercially reasonable efforts to: (ai) make available to prospective lenderscausing management teams of Seller and the Company, on a customary with appropriate seniority and expertise, at reasonable basis times and upon reasonable advance notice, appropriate personnel of the Company to participate in meetings, rating agency presentations, due diligence sessions and its Subsidiariesroad shows, if any; (bii) provide, as promptly as reasonably practicable, providing information relating with respect to the Company and its Subsidiaries to Buyer Parent and its Representatives (including any financing institutions contemplated sources) as reasonably requested by Buyer Parent; (iii) preparing and furnishing to arrange and/or provide all or any portion of Buyer Parent on a timely basis the Debt Financing Required Information, which shall be prepared in accordance with applicable securities Laws, and other financial data and such other financial information concerning the Company and its Subsidiaries as reasonably requested by Buyer Parent; (the “Financing Sources”iv) (including information to be used assisting in the preparation of a customary offering memoranda, private placement memoranda, prospectuses, prospectus supplements, bank confidential information package regarding memoranda, rating agency presentations, marketing materials (within the business, operations, financial condition, projections meaning of applicable securities Laws) and prospects similar documents (each an “Offering Document”); (v) (A) using commercially reasonable efforts to cause the relevant accountants of the Company and its respective Subsidiaries to cooperate with Buyer Parent, including by participating in drafting sessions and accounting due diligence sessions, and using its reasonable best efforts to obtain the consent of, and customary for financings similar to the Debt Financing) comfort letters from, such accountants to the extent required in connection with any offering of securities by Buyer Parent if necessary for Buyer Parent’s use of financial statements of the Company or its Subsidiaries on a timely basis and (B) cooperating with customary due diligence requests by Buyer Parent or any financing sources and their respective legal counsels and cooperating with Buyer Parent’s legal counsel in connection with any legal opinions that such counsel may be required to deliver in connection with any Financing; (vi) furnishing promptly all documentation and 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 PATRIOT Act, to the extent requested not less than five business days prior to the delivery thereof by such financing source or the Buyer; (vii) in connection with any Financing, executing and delivering any definitive financing documents as reasonably requested by Buyer Parent and/or and delivering such officer’s certificates as are customary in financings of such type and as are, in the Financing Sources good faith determination of the persons executing such officer’s certificates, accurate; (viii) causing the taking of any corporate, limited liability company or partnership actions, as applicable, by the Seller, the Company or their Subsidiaries reasonably necessary to assist in preparation of customary offering or information documents to be used for permit the completion of the Debt any Financing, ; and (cix) assist in the obtaining of seeking to obtain customary payoff letters letters, lien terminations and releases and instruments of discharge to be delivered at Closing to allow providing for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities all Indebtedness and releasing release of Liens and the pledges contemplated by any repayment or refinancing of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions Indebtedness to be delivered paid off, discharged and terminated on the Closing Date. If at any time any information in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of any Offering Document should be discovered by the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers Seller or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect Representatives that should be set forth in an amendment or supplement to such Offering Document, so that such Offering Document shall not contain an untrue statement of a material fact, omit to state a material fact that is required to be stated therein or omit to state a material fact that is necessary to be stated therein in order for a statement not to be misleading, the Debt Financing. Parent shall promptly, upon request by the Company, reimburse Seller and the Company for all reasonable shall promptly notify Buyer Parent thereof and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company provide any such information to be set forth in such amendment or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financingsupplement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Oil States International, Inc)
Financing Cooperation. Upon Subject to Section 6.11(a), prior to the request of ParentClosing, the Company shall use and shall cause its commercially reasonable efforts to Subsidiaries to, at Parent’s sole expense, provide reasonable cooperation that is necessary and customary in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities obtain the Debt Financing (“Debt Financing”); provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially ), including, at the reasonable efforts shall includerequest of Parent, (i) furnishing, or causing to be furnished to, Parent and its Debt Financing Sources such customary financial and other information with respected to the extent Company and its Subsidiaries as Parent shall reasonably requested request in order to consummate the Debt Financing (provided, however, that there shall be no obligation to prepare any financial statements, reports or other information or documents other than such financial statements and reports prepared by Parentthe Company and/or its Subsidiaries in the ordinary course of business), commercially (ii) participating in a reasonable efforts to: (a) make available to prospective lendersnumber of lender meetings, on a customary lender presentations, due diligence sessions and reasonable basis and rating agency meeting, in each case, upon reasonable noticeadvance notice and at mutually agreed times, appropriate personnel (iii) providing reasonable assistance to Parent in its preparation of rating agency presentations, customary bank information memoranda and similar documents reasonably and customarily required in connection with the Debt Financing, in each case, solely with respect to information relating to the Company and its Subsidiaries, (biv) provide, as promptly as reasonably practicable, delivering information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of documentation requested in writing by the Debt Financing Sources at least ten (10) Business Days prior to the Closing Date with respect to compliance under applicable “Financing Sources”know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act and (v) (including information to be used in the preparation of obtaining a customary information package regarding the businesspayoff letter, operations, financial condition, projections and prospects of the Company lien terminations and its Subsidiaries other customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing documentation to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood Agreement; provided that the Company such requested cooperation shall have no obligation not (A) cause any representation or warranty in this Agreement to pay or discharge any such indebtedness prior to the Effective Time)be breached, (dB) cooperate with respect cause any condition to matters relating Closing to pledges fail to be satisfied or otherwise cause any breach of collateral to take effect at the Effective Time in connection with such financingthis Agreement, (eC) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by require the Company or any of its Subsidiaries or their respective Representatives in connection to (i) execute, deliver, enter into, or perform any agreement, document, advisors or instrument, with their respective obligations pursuant torespect to the Debt Financing that is not contingent upon the Closing or that would be effective prior to the effective time of the Closing, and in accordance with(ii) deliver or cause the delivery of, this Section 5.13prior to Closing, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities legal opinions or expenses suffered reliance letters or incurred by any of them certificate as to solvency or any other certificate in connection with the arrangement Financing or (iii) adopt resolutions or execute consents prior to the Closing to approve or authorize the execution of the Debt Financing and or the incurrence of indebtedness thereby, (D) require any information used in connection therewith (other than information provided by Representative of the Company or any of its SubsidiariesSubsidiaries or their respective Affiliates to deliver any certificate or take any other action pursuant to this Section 6.12 if doing so would, or could reasonably be expected to, result in liability to such Representative (E) and all require the Company or any of its Subsidiaries to provide any information the disclosure of which is prohibited or restricted under applicable Law or any binding agreement with a third party or is legally privileged or consists of attorney work product, (F) require the Company or any of its Subsidiaries to take any action that will 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 or (G) require the Company or any of its Subsidiaries to enter into or approve any Debt Financing. All non-public or other actions taken 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, which shall, in any event, require “click through” or other affirmative action by the recipient acknowledging the confidentiality of such information. Parent shall promptly (and in any event within three (3) Business Days of delivery of documentation evidencing such cost and expenses) reimburse the Company for any expenses and costs incurred in connection with the Company’s or its Affiliates’ or Representatives’ obligations under Section 6.11 or this Section 6.12. Any offering materials, presentations and other documents shall include a conspicuous disclaimer to the effect that none of the Company or any of its Subsidiaries or their respective Affiliates or any of their or their Affiliates’ respective Representatives have any responsibility for the content of such document and disclaim all responsibility therefor and shall further include a disclaimer with respect to the Company and its Subsidiaries and their respective Affiliates and their and their Affiliates’ respective Representatives pursuant in any oral disclosure with respect to this Section 5.13such financing. Parent and Merger Sub shall keep the Company informed on a reasonably current basis Any use of the status of Company’s and its efforts Subsidiaries’ logos in connection with the Debt Financing shall require the Company’s prior written consent (such consent not to arrange and consummate any Debt Financingbe unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Financing Cooperation. Upon the request of ParentSubject to Section 6.10(a), the Company shall and shall cause its Subsidiaries, and shall use its commercially reasonable best efforts to provide reasonable cooperation cause their respective Representatives to, at Parent’s sole expense, reasonably cooperate in connection with Parent’s efforts to arrange and consummate any amendment to, the arrangement of the Financing or replacement or supplement of, Parent’s credit facilities alternative financing as may be reasonably requested by Parent (“Debt Financing”); provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries or utilize an undue amount of the Company’s or Subsidiaries’ personnel time). Such commercially reasonable efforts shall include, Subject to the extent reasonably requested immediately preceding sentence, such cooperation by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries and their respective Representatives shall include, at the reasonable request of Parent, (a) participating in a reasonable number of meetings and presentations with prospective lenders (including using reasonable best efforts to make available the Company’s senior management for participation in such meetings), (b) using reasonable best efforts to provide information (including any information necessary to facilitate preparation of projections and the pro forma financial statements required pursuant to the Securities Act (including Article XI of Regulation S-X) in connection with the Merger), documents, authorization letters, opinions and certificates, enter into agreements and take other actions that are customary in connection with the Financing or alternative financing institutions contemplated or necessary or desirable to arrange and/or provide all permit Parent to fulfill conditions or any portion obligations under the definitive documentation for the Financing or the alternative financing, (c) furnishing the report of the Debt Financing (Company’s auditor on the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, most recently available audited consolidated financial condition, projections and prospects statements of the Company and its Subsidiaries customary for financings similar and using its reasonable best efforts to obtain the consent of such auditor to the Debt Financinguse of such report in accordance with normal custom and practice, (d) using reasonable best efforts to assist in the extent preparation of one or more confidential information memoranda and other marketing and syndication materials reasonably requested by Parent and/or the Financing Sources and (e) using commercially reasonable efforts to assist in preparation procuring any necessary rating agency ratings or approvals. The Company hereby consents to the reasonable use of customary offering its logos in connection with the Financing or information documents to be used for the completion of the Debt any alternative Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge provided that such use is disclosed to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness in writing prior to the Effective Time)time that it is so used, (d) cooperate with respect such logos are used in a manner that could not reasonably be expected to matters relating to pledges harm or disparage the Company, its Subsidiaries or their marks and on such other customary terms and conditions as the Company or applicable Subsidiary shall reasonably impose. Parent shall, promptly upon termination of collateral to take effect at this Agreement, reimburse the Effective Time Company for all reasonable out-of-pocket expenses and costs incurred in connection with such financing, (e) assist Parent the Company’s or its Affiliates’ obligations under this Section 6.11. Notwithstanding anything in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect this Agreement to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurscontrary, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, Subsidiaries shall (i) be required to pay any commitment or other similar fee, (ii) fee or enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses liability or obligation in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect alternative financing) prior to the Debt FinancingEffective Time. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred All material non-public information provided by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. 6.11 shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Merger Sub shall keep be permitted to disclose such information to the Company informed on a reasonably current basis lenders in respect of the status Commitment Letter and other potential sources of its efforts capital, rating agencies and prospective lenders and investors during syndication of the Financing or any alternative Financing subject to arrange the lenders, potential sources of capital, ratings agencies and consummate any Debt Financingprospective 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).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ascena Retail Group, Inc.)
Financing Cooperation. Upon (a) Prior to the request of ParentClosing, the Company shall use its commercially reasonable best efforts to, and shall cause its Subsidiaries to use their reasonable best efforts to, and shall use its reasonable efforts to provide reasonable cooperation in connection with Parent’s efforts to arrange cause its and consummate any amendment their Representatives to, or replacement or supplement ofprovide, at the expense of Parent’s credit facilities , all cooperation reasonably requested by Parent necessary and customary for the arrangement of the Debt Financing (“Debt Financing”); provided provided, that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and or any of its Subsidiaries. Such commercially ), including by (i) participating in a reasonable efforts shall includenumber of meetings (including meetings with prospective lenders), to the extent presentations, road shows, due diligence sessions and sessions with rating agencies, at reasonable times and with reasonable advance notice, (ii) executing and delivering Definitive Agreements and other certificates as may be reasonably requested by Parent, commercially and to the extent required by the Debt Financing, using reasonable best efforts to: to facilitate the pledging of, and perfection of security interests in, collateral, in each such case, effective no earlier than the Effective Time, (aiii) make available to prospective lenders, on a customary furnishing Parent and reasonable basis and upon reasonable notice, appropriate personnel the Lenders as promptly as reasonably practicable the financial statements of the Company and its Subsidiariesconsolidated Subsidiaries required by paragraph 6 in Exhibit C to the Debt Commitment Letter (such financial statements, the “Required Financial Information”) and, following the delivery of a request therefor to the Company by Parent (which notice shall state with specificity the information requested), such financial and other information regarding the Company as is readily available to the Company at such time and is customarily required in connection with the execution of financings of a type similar to the Debt Financing, (biv) if requested by Parent, using reasonable best efforts to assist Parent in connection with Parent’s preparation of customary pro forma financial statements as required by paragraph 7 in Exhibit C to the Debt Commitment Letter; provided, that (x) Parent shall be responsible for the preparation of such pro forma financial statements and any pro forma adjustments giving effect to the Merger and the other transactions contemplated herein and (y) the Company’s assistance shall relate solely to the financial information and data derived from the Company’s historical books and records, (v) in each case following Parent’s reasonable request, using reasonable best efforts to assist Parent and Merger Sub in the preparation of customary (A) confidential information memoranda (including a version that does not include material non-public information and executing and delivering one or more customary authorization and representation letters contemplated by the Debt Commitment Letter or otherwise that are customary in the Debt Financing) and other customary marketing materials required in connection with financings similar to the Debt Financing, (B) materials for rating agency presentations and (C) definitive documentation for the Debt Financing, (vi) following Parent’s reasonable request, using reasonable best efforts to cause directors and officers who will continue to hold such offices and positions from and after the Effective Time to execute resolutions or consents of the Company and its Subsidiaries that do not become effective until the Effective Time with respect to entering into the definitive documentation for the Debt Financing and otherwise as necessary to authorize consummation of the Debt Financing, and (vii) if requested by Parent, provide, as promptly as reasonably practicableat least three (3) Business Days prior to the Closing Date, all documentation and other information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all as is required by applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and including, if the Company or any portion of its subsidiaries qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certificate (each as defined in the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the businessCommitment Letter), operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, writing at least nine (c9) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness Business Days prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at Closing Date. Notwithstanding the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occursforegoing, neither the Company nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 5.13 that (A) would require the Company, its Subsidiaries or any Persons who are officers or directors of the Company or its Subsidiaries to pass resolutions or consents to approve or authorize the execution of the Debt Financing that is effective prior to the Effective Time or execute or deliver any certificate, document, instrument or agreement (other than the authorization and representation letters referred to in clause (v)(A) above) or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Effective Time, (B) cause any representation or warranty in this Agreement to be breached by the Company or any of its Subsidiaries, nor (C) require the Company or any of their respective officers or directors, as the case may be, shall (i) be required its Subsidiaries to pay any commitment or other similar fee, (ii) enter into any definitive agreement fee or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses expense, liability or obligation (other than those set forth in this Section 5.13) in connection with the Debt Financing prior to the Closing or (iv) be required to take have any action in his/her capacity as a director obligation of the Company or any of its Subsidiaries under any agreement, certificate, document or instrument be effective until the Closing, (D) cause any director, officer or employee or stockholder of the Company or any of its Subsidiaries to incur any personal liability, (E) conflict with the organizational documents of the Company or its Subsidiaries or any Laws, (F) reasonably be expected to result (with or without notice, lapse of time, or both) in a material violation or breach of, or a default under, any Contract to which the Company or any of its Subsidiaries is a party, (G) provide access to or disclose information that the Company or any of its Subsidiaries determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (H) prepare any financial statements or information that (x) are not available to it and prepared in the ordinary course of its financial reporting practice and (y) would not otherwise be available to it or capable of being prepared by it without undue burden or other than with the use of its commercially reasonable efforts or (I) require the Company or any of its Subsidiaries to enter into any instrument or agreement (other than the authorization and representation letters referred to in clause (v)(A) above) that is effective prior to the Effective Time or that would be effective if the Closing does not occur. Nothing contained in this Section 5.13 or otherwise shall require the Company or any of its Subsidiaries, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing. Parent shall promptlyshall, promptly upon request by the Company, reimburse the Company following termination of this Agreement for all reasonable and documented out of out-of-pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, the cooperation contemplated by this Section 5.13, 5.13 and shall indemnify and hold harmless the Company, Company and its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses losses suffered or incurred by any of them in connection with the arrangement of the Debt Financing Financing, any action taken by them at the request of Parent pursuant to this Section 5.13 and any information used in connection therewith (other than information provided in writing by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives specifically in connection with its obligations pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing).
Appears in 1 contract
Financing Cooperation. Upon (a) Prior to the request of ParentClosing, the Company shall, shall cause the other Group Companies to, and shall instruct their respective Representatives to, on a timely basis (at the Buyer’s sole cost and expense) provide such reasonable cooperation as may be reasonably requested by the Buyer in connection with the arrangement, marketing, syndication and consummation of the Financing by the Buyer as may be reasonably requested by the Buyer and the Financing Entities in connection with the Financing, including using its commercially reasonable efforts to: (i) assist in preparation for marketing efforts (including lender and investor meetings and calls), other meetings and due diligence sessions (including accounting due diligence sessions) and sessions with prospective lenders and investors; (ii) assist in the preparation of confidential information memoranda, offering memoranda and similar marketing documents for the Financing; (iii) as promptly as reasonably practicable, inform the Buyer if any officer the Company or any Group Company shall have knowledge of any facts that would likely require the restatement of the Company Financial Statements; (iv) to the extent not provided prior to the date hereof, provide as promptly as is reasonably practicable the Company Financial Statements (which shall be consistent in all material respects with the Draft Company Financial Statements) and any information reasonably requested by Buyer in writing in connection with Buyer’s preparation of pro forma financial information and financial statements; (v) directing the chief financial officer or any other officer with appropriate authority of any Group Company to execute and deliver on behalf of any Group Company (but not to be effective before the Closing) any pledge and security documents, other definitive financing documents, or other certificates, or documents, in each case as may be reasonably requested by the Buyer in connection with the Financing and otherwise facilitate the pledging of collateral (including cooperation in connection with the pay-off of any debt and the release of related Liens and termination of security interest); (vi) take all corporate actions, subject to the occurrence of the Closing, reasonably requested by the Buyer that are necessary to permit the consummation of the Financing and to permit the proceeds thereof to be made available on the Closing Date to consummate the transactions contemplated hereby; and (vii) provide at least five (5) Business Days prior to the Closing Date all documentation and other information about the Company and any Group Company as is required by applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act to the extent requested at least eight (8) Business Days prior to the anticipated Closing Date. The Company hereby consents to the use of the logos of the Company and the other Group Companies solely in connection with the Financing. Prior to the Closing, the Company shall, and shall cause the other Group Companies to, use its commercially reasonable efforts to provide reasonable cooperation in connection cause its independent auditors to provide, consistent with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall include, to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiariespractice, (bA) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used reasonable assistance in the preparation of a customary information package regarding the business, operations, pro forma financial condition, projections statements and prospects of the Company (B) reasonable assistance and its Subsidiaries customary for financings similar cooperation to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its SubsidiariesBuyer, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financingattending accounting due diligence sessions.
Appears in 1 contract
Financing Cooperation. Upon (a) On and prior to the request of ParentClosing, the Selling Parties and the Company shall use its commercially reasonable efforts to provide provide, and the Company shall use commercially reasonable efforts to cause Sellers’ Representatives to provide, in each case in a timely manner, reasonable cooperation and assistance to Buyer in connection with Parent(i) the arrangement of the Financing and (ii) Buyer’s efforts ability to arrange comply with regulatory reporting requirements, in each case including, as reasonably requested, (A) furnishing Buyer and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that its Financing Sources with all financial and other information concerning the Company reasonably required by such cooperation does not unreasonably interfere Financing Sources in connection with the ongoing operations Financing; (B) assisting in the preparation of customary confidential information memoranda and other customary materials to be used in connection with the Financing; (C) ensuring that the syndication efforts with respect to the Financing benefit materially from existing banking and lending relations of the Company and its Subsidiaries. Such commercially Affiliates; (D) making senior management of the Company available to participate in a reasonable efforts shall includenumber of due diligence meetings, bank meetings, drafting sessions and similar presentations to and with prospective lenders; (E) providing such certificates, documents and financial reports as may be reasonably requested by Buyer and its Financing Sources, including such financial reports as are required by the SEC or other regulatory bodies prior to the Closing; (F) assisting with the preparation of definitive financing documentation and the schedules and exhibits thereto, in each case, customarily required to be delivered under such definitive financing documentation; (G) providing all cooperation that is reasonable and customary to satisfy the conditions precedent set forth in any commitment letter or definitive document relating to the Financing to the extent reasonably requested by Parentthe satisfaction of such condition requires the reasonable and customary cooperation of, commercially or is within the control of, Seller or the Company; (H) following reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable advance notice, appropriate personnel of providing to Buyer and its Financing Sources all documentation and other information about the Company required by regulatory authorities under applicable “know your customer” and its Subsidiariesanti-money laundering rules and regulations, including the PATRIOT Act; (bI) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used assisting Buyer in the Buyer’s preparation of a customary pro forma financial information package regarding the business, operations, and pro forma financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time statements in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of any Financing for the independent accountants of periods for which the Company is obligated to deliver financial statements hereunder by providing Buyer with sufficient and its Subsidiaries, including customary information with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 Company for Buyer to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, prepare such pro forma financial information and pro forma financial statements; and (J) providing such additional cooperation as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed reasonably requested by Parent, be required to incur any other expenses Buyer in connection with the Debt Financing Financing; provided, that nothing herein shall require (w) such cooperation to the extent it would interfere unreasonably with the business or (iv) be required to take any action in his/her capacity as a director operations of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse Subsidiaries; (x) the Company for all reasonable and documented out of pocket costs to prepare or deliver any financial statements other than those (including reasonable attorneys’ fees1) incurred previously provided to Buyer or (2) required to be delivered to Buyer pursuant to Section 7.05; (y) the Company to prepare or deliver any other financial information in a form not customarily prepared by the Company or any financial information with respect to a month or fiscal period that has not yet ended or has ended less than forty-five (45) calendar days prior to the date of its Subsidiaries such request; or their respective Representatives (z) the Company to deliver or cause the delivery of any legal opinions or any certificate as to solvency. Notwithstanding anything in connection with their respective obligations pursuant tothis Agreement to the contrary, and in accordance withno event shall the Company be required to bear any out-of-pocket cost or expense, this Section 5.13, and shall indemnify and hold harmless pay any fee or incur any Liability prior to the Company, its Subsidiaries and their respective Representatives from and against Closing or make any and all damages, losses, costs, liabilities commitment or expenses suffered or incurred by any of them Contract effective prior to Closing in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing.
Appears in 1 contract
Financing Cooperation. Upon (a) In the request period between the date hereof and the Closing Date or earlier termination of Parentthis Agreement, the Company shall Seller will use its commercially reasonable efforts to provide provide, and cause the Company and it and their respective representatives to use their commercially reasonable efforts to provide, subject to Section 6.2, at Buyer’s sole expense, to Buyer such cooperation as may be reasonably requested by Buyer that is customary in connection with Parent’s efforts any effort by Buyer to arrange and consummate any amendment to, obtain debt or replacement or supplement of, Parent’s credit facilities other financing in connection with the transactions contemplated hereby (the “Debt Buyer Financing”); provided that such cooperation does not unreasonably interfere , including (i) furnishing Buyer and its actual and potential financing sources with the ongoing operations of financial and other pertinent information regarding the Company and its Subsidiaries. Such commercially the Covered Business as required by the definitive documents governing the Buyer Financing, (ii) participation in a reasonable efforts shall includenumber of meetings, drafting sessions, due diligence presentations, ratings agency sessions and road shows in connection with the Buyer Financing to the extent customary and reasonable and not unreasonably interfering with the business of the Seller, (iii) assisting with the preparation of marketing materials for rating agency presentations, offering documents, private placement memoranda, confidential and customary bank information memoranda and similar documents used in connection with such Buyer Financing, (iv) executing and delivering, as of the Closing Date, any pledge and security documents, other definitive financing documents, or other certificates or documents, in each case as applicable and to the extent reasonably requested by Parentthe Buyer; provided that the effectiveness thereof shall be conditioned upon, commercially reasonable efforts to: or become operative after, the occurrence of the Closing, and (av) make as of the Closing Date, taking all corporate actions necessary to satisfy the conditions to consummation of the Buyer Financing and to permit the proceeds thereof to be made available to prospective lendersBuyer. Notwithstanding the above, on a customary all organizational actions shall be deemed to become effective only if and reasonable basis when the Closing occurs and upon reasonable noticeshall be derived exclusively from the authority of, appropriate personnel and shall only be taken by, the board of directors or other equivalent governing body of the Company as constituted after giving effect to the Closing. All non-public information or other confidential information provided pursuant to this Section 6.22(a), shall be kept confidential in accordance with the Confidentiality Agreement, except that Buyer and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating Affiliates shall be permitted to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including disclose such information to be used in the preparation of a customary potential syndicate members during syndication (and allow such potential syndicate members to use such information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financingsyndication), subject to customary confidentiality undertakings by such potential syndicate members. (eb) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of Until the independent accountants of Closing, the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) not be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement fee or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses liability or obligation in connection with the Debt Financing or (iv) be required Buyer Financing, and for the avoidance of doubt, such fees shall not constitute Company Transaction Expenses. Buyer shall, upon the earlier to take any action in his/her capacity as a director occur of the Company or any Closing and the termination of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Companythis Agreement, reimburse Seller and the Company for all reasonable and documented out of out-of-pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives them in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, the cooperation of the Company with the Buyer Financing and shall indemnify and hold harmless Seller and the Company, its Subsidiaries Company and their respective Representatives directors, officers, employees and representatives from and against any and all damages, losses, costs, liabilities or expenses Losses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing.62 US 167664346 HB: 4845-7978-5147.2
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Associated Banc-Corp)
Financing Cooperation. Upon On and prior to the request of ParentClosing, the Company shall, and shall cause each other Group Company to, use its commercially reasonable best efforts to provide provide, and use reasonable cooperation in connection with Parent’s best efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with cause the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall include, Group Companies’ Agents to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case in a reasonably timely manner, reasonable cooperation and assistance to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of any debt or equity financing for the Debt Financing Transactions, including, as reasonably requested, (i) assisting with due diligence activities of any debt or equity financing sources relating to the financial information of the Group Companies; (ii) making management of the Group Companies available to participate in virtually-held due diligence meetings, marketing sessions, and sessions with rating agencies and debt and equity financing sources; (iii) assisting with the preparation of any Offering Documents; (iv) promptly, and in any event at least three (3) days prior to the Closing Date, furnishing all documentation and other information used reasonably requested by Parent in connection therewith with applicable “know your customer” and anti-money laundering Laws, including the USA PATRIOT Act of 2001, as amended; and (v) providing such certificates, documents and financial and other than information as may be reasonably requested by Parent and its debt and equity financing sources, including customary comfort letters from the Group Companies’ independent accountants; provided that nothing herein shall require (A) such cooperation to the extent it would interfere unreasonably with the business or operations of the Group Companies or require travel by any Group Company officers or employees; (B) the Group Companies to prepare or deliver any financial statements or financial information not previously provided to Parent; or (C) deliver or cause the delivery of any legal opinions or any certificate as to solvency. Notwithstanding anything in this Agreement to the contrary, in no event shall the Company, nor any other Group Company, be required to bear any out-of-pocket cost or expense, pay any fee or incur any Liability (collectively, the “Financing Liabilities”) or make, execute, deliver or take any corporate actions to authorize any commitment, Contract, certificate or document prior to Closing in connection with any such debt or equity financing. Parent shall indemnify, hold harmless and reimburse the Company for any Financing Liabilities incurred by the Company Group Companies and their Affiliates in performing the covenants contained in this Section 5.15, except to the extent resulting from the gross negligence or willful misconduct of the Group Companies or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt FinancingAffiliates.
Appears in 1 contract
Financing Cooperation. Upon Prior to the request of ParentEffective Time, the Partnership Entities shall, and shall cause their respective Subsidiaries and their respective Representatives to, at Parent’s sole cost and expense, provide all cooperation that is reasonably necessary, proper or advisable in connection with any financing by Parent or any of its Subsidiaries in connection with the Merger as may be reasonably requested by Parent or its Representatives. Without limiting the generality of the foregoing, the Partnership Entities shall, and shall cause their respective Subsidiaries and use commercially reasonable efforts to cause their respective Representatives to (i) furnish, as promptly as practicable, the report of the Company’s auditor on the most recently available audited consolidated financial statements of the Company shall and its Subsidiaries and use its commercially reasonable efforts to obtain the consent of such auditor to the use of such report in accordance with normal custom and practice and use commercially reasonable efforts to cause such auditor to provide reasonable cooperation customary comfort letters (providing “negative assurance” comfort) and drafts thereof to the underwriters, initial purchasers or placement agents, as applicable, in connection with such financing by Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities ; (“Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such ii) use commercially reasonable efforts shall includeto furnish, as promptly as practicable, financial statements and other financial data of the Partnership as would be required by Regulation S-X and Regulation S-K promulgated under the Securities Act for a registered public offering to consummate any offering(s) of securities contemplated by such financing; and (iii) provide reasonable and customary assistance in the preparation of one or more confidential information memoranda, prospectuses, offering memoranda, private placement memoranda and other marketing and syndication materials (including the provision of authorization letters and a representation with respect to the extent presence or absence of material non-public information) reasonably requested by Parent, commercially including by making available, at reasonable efforts to: (a) make available to prospective lenders, times and on a customary and reasonable basis and upon reasonable advance notice, appropriate personnel employees and advisors of the Company and its Subsidiaries, Partnership Entities; provided that (bx) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion none of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering Partnership or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, Subsidiaries shall (i) be required to pay any commitment or other similar feefee or incur any other liability or obligation in connection with such financing or to take any action that would be prohibited by any applicable Law or cause a default of, or breach under, or otherwise violate any Partnership Material Agreement, in each case except for any payment, incurrence or action that is conditioned upon, and shall not take effect until, the Effective Time, (iiy) enter into any definitive agreement or have any liability no obligations of the Partnership or any obligation of its Subsidiaries under any certificate, documentopinion, instrumentcontract, credit agreement indenture or other document or instrument delivered pursuant to this Section 7.17 shall be effective until the Effective Time, and none of the Partnership or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) of its Subsidiaries shall be required to take any action in his/her capacity as a director pursuant to this Section 7.17 under any certificate, opinion, contract, indenture or other document or instrument that is not contingent upon the Closing or that would be effective prior to the Effective Time and (z) none of the Company Partnership or its senior officers shall be required to engage in any action that would interfere unreasonably with the business of the Partnership and its Subsidiaries with respect to the Debt FinancingSubsidiaries. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, Partnership and its Subsidiaries and their respective officers, directors and other Representatives from and against any and all damages, losses, costs, liabilities losses or expenses damages suffered or incurred by any of them in connection with the arrangement of any financing by Parent or any of its Subsidiaries in connection with the Debt Financing Merger and any information used utilized in connection therewith except (other than A) with respect to information provided supplied by the Company Partnership, its Subsidiaries and Representatives specifically for inclusion or incorporation by reference therein and/or (B) to the extent such losses and damages arise from the willful misconduct of the Partnership or any of its Subsidiaries) and all other actions taken by the Company’ officers, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financingdirectors, employees or Representatives.
Appears in 1 contract
Financing Cooperation. Upon (a) Prior to the request of ParentClosing, the Company shall, and shall cause its Subsidiaries to, and shall use its commercially reasonable efforts to provide reasonable cooperation cause its and its Subsidiaries’ officers, directors, employees, accountants, representatives, agents and advisors to, cooperate with Acquiror and its Subsidiaries in connection with Parent’s efforts to arrange the arrangement, syndication and consummate any amendment toobtaining of the Debt Financing (solely for purposes of this Section 7.08, or replacement or supplement of, Parent’s credit facilities (the term “Debt Financing”); provided ” shall be deemed to also include a customary “high yield” non-convertible debt securities offering to be issued or incurred in lieu of any bridge facility contemplated by the Debt Financing or pursuant to any “flex” or “securities demand” provisions of the fee letter applicable to the Debt Financing) as may be reasonably requested by Acquiror. Such cooperation by the Company and its Subsidiaries shall include: (i) furnishing, or causing to be furnished to, Acquiror and the Debt Financing Sources the Required Information and such other information regarding the Company and its Subsidiaries as may be reasonably requested by Acquiror that such cooperation does not unreasonably interfere is reasonably necessary to consummate the Debt Financing, (ii) causing the Company’s and its Subsidiaries’ management teams, with the ongoing operations appropriate seniority and expertise, to participate in meetings, lender presentations, due diligence sessions, drafting sessions, road shows and meetings with prospective lenders and ratings agencies, including direct contact between senior management of the Company and its Subsidiaries. Such commercially , on the one hand, and the actual and potential Debt Financing Sources and potential lenders or investors in the Debt Financing, on the other hand, in each case, upon reasonable advance notice and at mutually agreed times, (iii) providing assistance to Acquiror (A) to prepare rating agency presentations and bank books, Offering Documents and other marketing materials of a type customarily used for the Debt Financing, (B) to cooperate with the marketing efforts shall includeof Acquiror and its Debt Financing Sources (or any sources of Alternate Debt Financing) for any of the Debt Financing (or any Alternate Debt Financing) as reasonably requested by Acquiror and (C) in (1) obtaining customary (for high yield offerings of non-convertible debt securities) comfort letters, including customary negative assurance comfort with respect to periods following the end of the latest fiscal year for which historical financial statements are included in the applicable Offering Documents, in each case, from the Company’s auditors, and confirmation that such auditors are prepared to deliver such comfort letters throughout the Marketing Period upon completion of customary procedures (including by delivery of customary management representation letters), (2) preparing pro forma financial statements in form and substance reasonably acceptable to the Company’s auditors and (3) obtaining assistance from the Company’s auditors in attending accounting due diligence sessions in connection with the Debt Financing, (iv) facilitating the pledging of collateral in connection with the Debt Financing (including the delivery at Closing of original share certificates (to the extent reasonably the equity interests of such Person are certificated), scheduling collateral information, assisting with collateral audits and field examinations and appraisals and other collateral diligence with respect to Company and each of its Subsidiaries if required under the Debt Documents), (v) delivering customary authorization and representation letters with respect to the bank information memoranda, offering documents, lender presentations and other marketing materials from a senior officer of the Company representing to the Debt Financing Sources that the public side versions of such documents, if any, do not include material non-public information about the Company or its Subsidiaries or securities and requesting consents of accountants for use of their reports in the Offering Documents and other marketing materials used in connection with the Debt Financing, (vi) at least five Business Days prior to the Closing, providing (A) all documentation and other information (including any required beneficial ownership certification) about the Company as is requested by Parentthe Debt Financing Sources at least ten Business Days prior to the Closing with respect to applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act, commercially and (B) a certification regarding beneficial ownership required by the Beneficial Ownership Regulation (as defined in the Debt Commitment Letter), (vii) using reasonable efforts to: (a) make available to prospective lenders, on a customary ensure that any syndication efforts in connection with the Debt Financing benefit from existing lending and reasonable basis and upon reasonable notice, appropriate personnel investment banking relationships of the Company and its Subsidiaries, (bviii) provideto the extent timely requested by Acquiror, as promptly as reasonably practicable, information relating to (A) causing the assets of the Company and its Subsidiaries to be released from any financing institutions contemplated to arrange and/or provide all liens securing indebtedness, (B) without limiting the foregoing, furnishing documents reasonably requested by Acquiror or any portion of the Debt Financing (Sources relating to the “Financing Sources”) (including information to be used in repayment of the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects existing indebtedness of the Company and its Subsidiaries customary for financings similar to and the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation release of customary offering or information documents to be used for the completion of the Debt Financingrelated liens, (c) assist in the obtaining of including customary payoff letters letters, guarantee releases, lien releases, redemption notices and instruments of satisfaction and discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilitiesindentures, in each case in a form reasonably satisfactory to take effect at Buyer and the Effective Time Debt Financing Sources, (it being understood that the Company shall have no obligation ix) executing and delivering any customary certificates or documents as may be reasonably requested by Acquiror on behalf of its Debt Financing Sources and to pay or discharge any such indebtedness prior be delivered to the Effective Time), Debt Financing Sources (d) cooperate including a certificate of the chief financial officer or another financial officer of the Business with respect to (A) solvency matters relating in the form set forth as an exhibit to pledges of collateral to take effect the Debt Commitment Letter and (B) financial information in the offering documents not otherwise customarily covered by the “comfort” letters described above) and (x) facilitating the execution and delivery at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents Closing of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document documents related to the Debt Financing, including by requesting that the appropriate members of the governing bodies of the Company and each of its Subsidiaries and the appropriate officers of the Company and each of its Subsidiaries be available upon reasonable notice to Acquiror and its counsel to sign resolutions, certificates and Debt Documents (iiiin each case to be held in escrow pending the Closing) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the authorization of the Debt Financing and the Debt Documents and the execution and delivery of the Debt Documents in anticipation of the Closing (provided, that any such authorization, execution and delivery shall be deemed to become effective only if and when the Closing occurs and shall be derived exclusively from the authority of Acquiror as the controlling equity holder of the Company as constituted after giving effect to the Closing); provided, in each case in clauses (i) through (x) above, that (w) neither the NESCO Owner nor any of its directors or officers, in their capacity as such, shall be required to cooperate with, or to incur any liability whatsoever in connection with, the Debt Financing prior to the Closing, (x) nothing in this Section 7.08 shall require cooperation to the extent that it would (A) cause any condition to Closing set forth in Article X to not be satisfied or otherwise cause any breach of this Agreement or (ivB) be required require the Company or any of its Subsidiaries to take any action that would reasonably be expected to conflict with or violate any Law, or result in his/her capacity the material contravention of, or result in a material violation or breach of, or material default under, any material Contract, (y) except as a director provided in clause (x) above, the governing bodies of the Company and its Subsidiaries shall not be required prior to the Closing to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained and (z) none of the Company or any of its Subsidiaries shall be required to execute any Debt Documents (except as set forth in clause (x) above) prior to the Closing, including any credit or other agreements, pledge or security documents, or other certificates, legal opinions or documents in connection with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing.60
Appears in 1 contract
Samples: Agreement and Plan of Merger (Capitol Investment Corp. IV)
Financing Cooperation. Upon (a) During the Interim Period, upon the request of ParentBuyer, the Company Group shall, and shall use its commercially reasonable efforts to provide reasonable cooperation cause its Representatives to, cooperate reasonably in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities the Financing (“Debt Financing”); provided that so long as such requested cooperation does not unreasonably interfere with the ongoing operations conduct of the business of the Company Group), including any offering of securities, requested repayment or refinancing of Indebtedness of Buyer and any SEC filing to be made by Buyer, including, as applicable, by: (i) causing the Company Group’s management teams, with appropriate seniority and expertise, to participate in meetings, due diligence and drafting sessions, rating agency presentations and road shows, if any; (ii) providing Required Information reasonably requested by Buyer or its Subsidiaries. Such commercially Financing Sources to the extent in the Company Group’s possession, or obtainable by the Company Group; (iii) assisting at Buyer’s sole expense in the preparation of SEC filings to be made by Buyer, offering memoranda, private placement memoranda, prospectuses, bank confidential information memoranda, rating agency presentations and similar documents (“Offering Documents”); (iv) (A) using reasonable commercial efforts to cause any accountants retained by the Company Group to cooperate with Buyer, including by participating in drafting sessions and accounting due diligence sessions, obtaining the consent of, and customary comfort letters from, such accountants (including by providing customary management letters and requesting legal letters to obtain such consent) in connection with any securities offering by Buyer if necessary or desirable for Buyer’s use of the Company Group’s financial statements, (B) using reasonable commercial efforts to cause any independent reservoir engineers retained by the Company Group to cooperate with Buyer, including by participating in drafting sessions and reservoir engineer due diligence sessions, obtaining the consent of, and customary comfort letters from, such engineers (including, if necessary, by providing customary management letters and requesting legal letters to obtain such consent) in connection with any securities offering by Buyer if necessary or desirable for Buyer’s use of the Company Group’s reserve reports, (C) cooperating with Buyer’s or other relevant independent reservoir engineers in connection with the drafting of any customary comfort letters that such independent engineers may be required to deliver in connection with any securities offering and (D) cooperating with Buyer’s legal counsel in connection with any legal opinions that such legal counsel may be required to deliver in connection with any securities offering as part of the Financing (the fee in respect of which shall includebe the responsibility of Buyer); (v) cooperating reasonably with any due diligence requests of the Financing Sources, to the extent customary and reasonable; (vi) in connection with any such Financing, provide customary authorization letters authorizing the distribution of information to prospective lenders and containing a customary representation that at the time of the delivery of such authorization letter all written factual information concerning the Properties (other than (A) any projections regarding their future performance, (B) other forward-looking information and (C) information of a general economic or industry nature), that has been made available to the Buyer or any Financing Source by any Seller or any of its representatives on its behalf in connection with the Financing, when taken as a whole, and together with the Sellers’ filings with the SEC, does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made; (vii) assisting in the amendment or novation of any of the Company Group’s Hedge Contracts, in each case, on terms that are reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel Buyer; provided that no obligation of the Company Group under any such amendments or novations shall be effective until the Closing Date; (viii) furnishing promptly all documentation and its Subsidiariesother information reasonably requested by a Financing Source and required by any Governmental Body under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, to the extent requested at least ten Business Days prior to the Closing Date; (bix) providein connection with the Financing, executing and delivering any definitive financing documents, including any necessary pledge and security documents, as promptly as reasonably practicablerequested by Buyer and otherwise facilitating the pledging of collateral in connection with the Financing, and providing customary title information relating and title opinions to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used extent in the preparation of a customary information package regarding Company Group’s possession or obtainable by the business, operations, financial condition, projections and prospects Company Group; provided that no obligation of the Company Group under any such definitive financing documents, including any pledge and its Subsidiaries customary for financings similar security documents, shall be effective until the Closing Date; (x) causing the taking of any corporate, limited liability company or partnership actions, as applicable, by the Company Group reasonably necessary to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for permit the completion of the Debt Financing, ; and (cxi) assist in the obtaining of seeking to obtain customary payoff letters letters, lien terminations and releases and instruments of discharge to be delivered at Closing to allow providing for the payoff, discharge and termination in full on the Closing Date of all Indebtedness under the Existing Company Credit Facilities Facility and releasing Liens release of liens contemplated by any repayment or refinancing of such Indebtedness to be paid off, discharged and terminated on the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood Closing Date; provided that the Company documents in respect of such arrangements contemplated by this clause (xi) shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions not need to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, effective until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt FinancingClosing Date.
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (PDC Energy, Inc.)
Financing Cooperation. Upon the request of ParentPrior to Closing, the Company Companies shall, and shall use its commercially reasonable efforts to cause their representatives to, use commercially reasonable efforts to provide reasonable cooperation to Buyer and Buyer’s Affiliates such assistance with any of Buyer’s financing efforts related to this Agreement as is reasonably requested by Buyer in connection with Parent’s efforts to arrange arranging and consummate any amendment toobtaining the financing, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such including using commercially reasonable efforts shall include, to provide the following: (i) reasonable cooperation with the due diligence requests of Buyer’s financing sources with respect to the Companies to the extent reasonably requested by Parentcustomary; (ii) promptly once available, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, furnishing Buyer with financial information relating related to the Company Companies and assisting Buyer in its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary any pro forma financial statements to the extent related to the Companies; (iii) assisting Buyer, its representatives and potential financing sources in preparing information package regarding the business, operations, financial condition, operations and projections and prospects of the Company Companies; and its Subsidiaries customary for financings similar (iv) providing all documentation and information about the Companies as is reasonably requested by Buyer at least five (5) Business Days prior to the Debt FinancingClosing Date in connection with any potential financing efforts. The Companies hereby consent to the reasonable use of all of the Companies’ logos in connection with the Buyer’s financing efforts, provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Companies or their reputation or goodwill. Notwithstanding the foregoing, nothing in this Section 7.3 shall require either Company to (A) provide any cooperation to the extent reasonably requested by Parent and/or it would interfere unreasonably with the Financing Sources to assist in preparation business or operations of customary offering or information documents to be used for the completion of the Debt Financingsuch Company, (cB) assist pay any commitment or similar fee or make any other payment in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoffconnection with such financing or enter into any agreement, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay document or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time instrument in connection with such financing, (eC) assist Parent in obtaining customary legal opinions to be delivered make any representation or warranty or deliver any certificate in connection with such financing or the marketing or arrangement thereof or (D) provide any cooperation, or take any action, that would cause any condition to Closing set forth in this Agreement to fail to be satisfied. Buyer shall, promptly upon request by any Company, reimburse such Company for all of such Company’s and (f) assist Parent in obtaining customary comfort letters its Affiliates’ and consents of the independent accountants of the representatives’ reasonable out-of-pocket costs and expenses incurred by such Company and its Subsidiaries, including with respect to the auditor consents Affiliates and representatives in connection with any filings with providing the SEC. Anything cooperation described in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing7.3. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and Buyer shall indemnify and hold harmless the Company, its Subsidiaries Companies and their respective Representatives representatives from and against any and all damages, losses, costs, liabilities or expenses losses suffered or incurred by any of them in connection with the arrangement of any financing of Buyer in connection with the Debt Financing transactions contemplated hereby and any information used utilized in connection therewith (other than therewith. All non-public information regarding the Companies provided by the Company or any of its Subsidiaries) and all other actions taken by the Companyto Buyer, its Subsidiaries and Affiliates or their respective Representatives representatives pursuant to this Section 5.137.3 shall be kept confidential in accordance with the Confidentiality Agreement. Parent ** Portions of this exhibit have been redacted in accordance with Item 601(b)(10) of Regulation S-K. The information is not material and Merger Sub shall keep would cause competitive harm to the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financingregistrant if publicly disclosed. “[***]” indicates that information has been redacted.
Appears in 1 contract
Financing Cooperation. Upon (i) From the request date hereof until the Closing Date or the earlier valid termination of Parentthis Agreement, in connection with the Debt Financing, the Company shall use commercially reasonable efforts to provide, shall cause its Subsidiaries to use commercially reasonable efforts to provide, and shall use its commercially reasonable efforts to provide cause its representatives (including members of senior management of the Company and its Subsidiaries), including legal and accounting advisors, to use commercially reasonable efforts to provide, reasonable cooperation in connection with Parentthe arrangement of the Debt Financing, as may be reasonably requested by Bxxxx and that is necessary and customary in connection with Bxxxx’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities obtain the Debt Financing (“Debt Financing”); provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall include, to the extent reasonably requested ) by Parent, using commercially reasonable efforts to: (aA) make available to prospective lendersparticipate in a reasonable number of meetings, on a customary rating agency presentations and reasonable basis and upon reasonable notice, appropriate personnel of the Company due diligence sessions; (B) assist Buyer and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used sources in the preparation of a customary confidential information package regarding the businessmemoranda and lender, operations, financial condition, projections investor and prospects of rating agency presentations and provide financing sources customary authorization and representation letters with respect thereto (provided that in no event shall the Company or any of its Subsidiaries or representatives be required to provide pro forma financial information); and (C) furnish Buyer and its Subsidiaries customary for financings similar financing sources promptly, and in any event at least three Business Days prior to the Closing Date, with all documentation and other information required by any Governmental Authority with respect to any Debt Financing) Financing under applicable “know your customer” and anti-money laundering rules and regulations, in each case, to the extent that such documentation and information has been reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness least ten Business Days prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, Closing Date; provided that neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, Affiliates shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement fee or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses Liability in connection with the Debt Financing prior to the Closing. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to, or (iv) be required to take reasonably likely to, harm or disparage the Company or any action in his/her capacity as a director of the Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing.
Appears in 1 contract
Samples: Limited Liability Company Agreement (TELUS International (Cda) Inc.)
Financing Cooperation. Upon Although the request of ParentParties acknowledge and agree that obtaining the Debt Financing is not a condition to the Closing, prior to the Company Closing, BiteSquad shall, and shall cause each BiteSquad Party to, and shall use its commercially reasonable efforts to cause the appropriate officers and employees of each BiteSquad Party to, provide such cooperation as is reasonably requested by Parent upon reasonable cooperation prior notice in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“the Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall include, to the extent reasonably requested by Parent, commercially reasonable efforts to: including (a) make available reasonably assisting Parent in the preparation of definitive financing documents, and other materials reasonably and customarily requested to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of be used in connection with obtaining the Company and its SubsidiariesDebt Financing, (b) provide, as promptly as reasonably practicable, information relating subject to the Company provisions of the Nondisclosure Agreement, providing reasonably promptly to Parent and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including Sources such financial and other information to be used in the preparation of a customary information package regarding the businessBiteSquad Parties that is readily available or within the BiteSquad Parties’ possession, operationsin each case, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent as is reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of connection with the Debt Financing, (c) assist in the obtaining of each BiteSquad Party executing and delivering reasonable and customary payoff certificates, management representation letters and instruments of discharge to be delivered at Closing to allow for other documentation required by the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens Debt Financing Sources and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document documentation related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required subject to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director occurrence of the Company or Closing, (d) using commercially reasonable efforts to cooperate in satisfying the conditions precedent set forth in any of its Subsidiaries with respect definitive documentation relating to the Debt Financing. Parent shall promptly, upon request by (e) delivering notices of prepayment for the Company, reimburse the Company for repayment in full of all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement Indebtedness of the Debt Financing and any information used in connection therewith (other than information provided by Sources to be repaid at the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives Closing pursuant to this Section 5.13. Parent 3.5(b), (f) delivering possessory collateral (such as certificated equity and Merger Sub shall keep promissory notes) within its possession to the Company informed on a reasonably current basis Debt Financing Sources, subject to the occurrence of the status of its efforts Closing, and (g) taking all reasonably requested formal corporate actions relating to arrange and consummate any the Debt Financing, subject to the occurrence of the Closing.
Appears in 1 contract
Financing Cooperation. Upon Without limiting the request generality of ParentSection 7.02 or Section 7.05, and to assist the Parent in its financing efforts, the Company shall use its commercially reasonable efforts agrees to provide reasonable cooperation in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere reasonably cooperate with the ongoing operations arrangement of the Company and its Subsidiaries. Such commercially reasonable efforts shall includeFinancing, to the extent reasonably requested including by Parent, commercially reasonable efforts to: (a) make available preparing and providing to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company Parent and its Subsidiaries, (b) provideFinancing Sources, as promptly as reasonably practicablepracticable after Parent’s written request therefor, all customary and reasonably available financial and other information relating with respect to the Company and each of its Subsidiaries and the transactions contemplated hereby and by the Financing, including, to any financing institutions contemplated the extent as would be required by Rule 3-05 and Article 11 of Regulation S-X to arrange and/or provide all or any portion be filed on a Form 8-K by Parent, regardless of the Debt Financing timing of such filing, (the “Financing Sources”i) (including information to be used in the preparation of a customary information package regarding the business, operations, audited consolidated annual financial condition, projections and prospects statements of the Company and its Subsidiaries (ii) unaudited interim consolidated financial statements of the Company (which shall have been reviewed by the independent accountants for the Company as provided in Statement on Auditing Standards No. 100), (b) providing as promptly as reasonably practicable after Parent’s written request therefor any information reasonably necessary to assist Parent with the preparation of customary for financings similar pro forma financial statements that meet the requirements of Regulation S-X and all other applicable accounting rules and regulations of the SEC promulgated thereunder and required to be included in a Registration Statement on Form S-3 under the Debt Financing) to the extent 1933 Act or reasonably requested and customarily required by Parent and/or the Financing Sources to assist be included in preparation of customary any offering or information documents to be used for the completion of the Debt Financing, Financing and (c) assist using commercially reasonable efforts to cause the Company’s independent accountants to cooperate with the Financing Sources in the obtaining of a manner consistent with their customary payoff letters practice and instruments of discharge to be delivered at Closing to allow for the payoff, discharge participate in customary auditor due diligence calls and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time provide customary accountants’ “comfort letters” (including customary “negative assurances”) (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be comfort letters delivered in connection with such financing the Company’s public offerings shall be deemed to be customary for purposes of this Section 7.06) and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any inclusion of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses audit reports in connection with the Debt Financing if historical financial statements or (iv) be required to take any action in his/her capacity as a director other financial information of the Company or are included in any of its Subsidiaries with respect to offering documents for the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (AdvancePierre Foods Holdings, Inc.)
Financing Cooperation. Upon (a) Parent shall use its reasonable best efforts to arrange the request Financing as promptly as practicable following the date of this Agreement and shall consummate the Financing on or prior to the Closing Date, including, but not limited to, by: (i) maintaining in effect the Financing Letter; (ii) participation by senior management of Parent in, and assistance with, the preparation of customary rating agency presentations and meetings with rating agencies relating to such arrangement of loans; (iii) causing the Financing to be consummated upon satisfaction of the applicable conditions; (iv) satisfying on a timely basis all conditions set forth in the Financing Letter required for the Closing Date; (v) negotiating, executing and delivering definitive agreements with respect to the Financing that reflect the terms contained in the Financing Letter (including any “market flex” provisions related thereto) or on such other terms acceptable to Parent and its financing sources; and (vi) in the event that the conditions set forth in Sections 8.01 and 8.02 and the conditions expressly set forth in the tenth paragraph of the Financing Letter (as in effect on the date hereof) have been satisfied or, upon funding would be satisfied, causing the financing providers to fund the full amount of the Financing. Parent shall give the Company prompt notice of any actual breach, repudiation or threatened or anticipated breach or repudiation by any party to the Financing Letter of which Parent or its Affiliates becomes aware relating to the obligation to fund the Financing. Without limiting Parent’s other obligations under this Section 6.06, if any portion of the Financing becomes unavailable, Parent shall (i) immediately notify the Company of such unavailability and the reasons therefore known to Parent, (ii) use reasonable best efforts to obtain Alternate Financing and consummate the transactions contemplated by this Agreement on the Closing Date, and (iii) use reasonable best efforts to obtain, and when obtained, provide the Company with a true and complete copy of, a new financing commitment that provides for such Alternate Financing; provided, that any such Alternate Financing shall (x) comply with all limitations on amendments, modifications and replacements of the Financing set forth in this Section 6.06, (y) the amount of such Alternate Financing shall be at least an amount sufficient to pay the Class B Redemption Consideration, the Merger Consideration and all fees, costs and expenses necessary to consummate the transactions contemplated by this Agreement and (z) such Alternate Financing shall not contain conditions to the receipt of the funds from such Alternate Financing that are materially less favorable in the aggregate to Parent than the conditions of the Financing that such Alternate Financing is replacing. Neither Parent nor any of its Affiliates shall amend, modify, supplement, restate, assign, substitute or replace the Financing Letter except for (i) substitutions and replacements pursuant to the immediately preceding sentence and (ii) amendments, modifications, supplements, restatements, assignments, substitutions or replacements which (A) do not reduce the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount unless the Financing is increased by a corresponding amount or the Financing is otherwise made available to fund such fees or original issue discount) or (B) do not impose new or additional conditions or otherwise expand, amend or modify any other provision of the Financing Letter, in a manner that would reasonably be expected to (x) materially delay or prevent or make less likely the funding of the Financing (or satisfaction of the conditions to the Financing) on the Closing Date or (y) adversely impact the ability of Parent, Merger Sub or the Company, as applicable, to enforce its rights against other parties to the Financing Letter or the definitive agreements with respect thereto, in each of clauses “(x)” and “(y)”, in any material respect (provided that Parent and Merger Sub may amend the Financing Letter to add additional lenders, arrangers, bookrunners, agents and investors as permitted therein). Parent shall promptly deliver to the Company copies of any such amendment, modification or replacement. Parent shall use its commercially not consent to any assignment of rights or obligations under the Financing Letter, other than as permitted by the terms of the Financing Letter, without the prior written approval of the Company, such approval not to be unreasonably withheld, conditioned or delayed. Parent shall keep the Company informed in reasonable efforts to provide reasonable cooperation in connection with detail of the status of Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt the Financing”); provided that such cooperation does not unreasonably interfere with . Upon the ongoing operations reasonable request of the Company or Stockholder Representative, Parent will confirm (y) with its financing sources their intent and its Subsidiaries. Such commercially reasonable efforts shall includeability to perform, to and the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel availability of the Company and its SubsidiariesFinancing, (b) provideunder the Financing Letter, as promptly as reasonably practicable, information relating subject only to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all satisfaction or any portion waiver of the Debt Financing (the “Financing Sources”) (including information to be used conditions in the preparation Financing Letter, and (z) that it is not aware of a customary information package regarding any event or condition that could reasonably be expected to result in the business, operations, financial condition, projections and prospects failure of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or any conditions in the Financing Sources to assist in preparation Letter. Neither Parent nor any of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to its Affiliates shall take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including action with respect to the auditor consents in connection with any filings with Financing that could reasonably be expected to materially delay or prevent the SECconsummation of the transactions contemplated hereby. Anything Notwithstanding anything contained in this Section 5.13 6.06 or in any other provision of this Agreement, in no event shall Parent or Merger Sub be required (A) to amend or waive any of the terms or conditions hereof or (B) to consummate the Closing prior to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses date specified in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing2.04(a).
Appears in 1 contract
Financing Cooperation. Upon Prior to the request of ParentClosing, the Company Parent shall use its commercially reasonable best efforts to provide to Purchaser all reasonable cooperation reasonably requested by Purchaser that is necessary in connection with Parent’s efforts to arrange and consummate any amendment to, debt or replacement or supplement of, Parent’s credit facilities equity financing sought by Purchaser in connection with the transactions contemplated by this Agreement (the “Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially , including (x) using reasonable best efforts shall include, to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lendersparticipate, on a customary and at reasonable basis times and upon reasonable notice, appropriate personnel in a reasonable number of meetings (including customary meetings with the Company parties acting as lead arrangers or agents for, and its Subsidiariesprospective lenders and/or purchasers of debt or equity securities), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Financing, (b) provideassist Purchaser and its Financing Sources in the preparation of customary offering memoranda, as promptly as reasonably practicablebank information memoranda, information rating agency presentations and lender presentations relating to the Company Financing, (c) cooperate with the marketing efforts of Purchaser and its Subsidiaries to any financing institutions contemplated to arrange and/or provide Financing Sources for all or any portion of the Debt Financing Financing, (the “d) provide and execute documents as may be reasonably requested by Purchaser or its Financing Sources”, (e) execute and deliver any pledge and security documents and otherwise facilitate the pledging of collateral, and (including f) provide such information to be used in the preparation about powers of a customary information package regarding the business, operations, financial condition, projections and prospects attorney executed on behalf of the Company Transferred Entities as may be reasonably requested by Purchaser or its Financing Sources, and its Subsidiaries (y) using commercially reasonable efforts to assist in obtaining accountant’s comfort letters and legal opinions reasonably requested by Purchaser and customary for financings similar to the Debt any Financing; provided, however, that, (i) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion irrespective of the Debt Financingabove, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay of Parent, Seller or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers Affiliates under any certificate, document or directorsinstrument shall be effective until the Closing and none of Parent, as the case may be, Seller or any of their respective Affiliates shall (i) be required to pay take or commit to take any commitment action under any certificate, document or other similar feeinstrument that is not contingent upon the Closing (including the entry into any agreement that is effective before the Closing) or that would be effective prior to the Closing, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related nothing herein shall require such cooperation to the Debt Financingextent it would interfere unreasonably with the business or operations of Parent, Seller or their respective Affiliates (including, without limitation, the Transferred Entities) or encumber any assets of such Persons, (iii) unless promptly reimbursed by none of Parent, Seller or their respective Affiliates shall be required to incur issue any other expenses in connection with the Debt Financing offering or information document, (iv) none of Parent, Seller or any of their respective Affiliates shall be required to take or permit the taking of any action in his/her capacity as a director pursuant to this Section 6.13 that would (A) cause any director, officer, employee or stockholder of the Company Parent or any of its Subsidiaries with respect Affiliates to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or incur any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing.personal liability,
Appears in 1 contract
Financing Cooperation. Upon the request of Parent, the Company shall Xxxx has agreed to use its commercially reasonable best efforts to provide provide, and to cause its subsidiaries and each of their respective representatives to provide, to Celgene and Purchaser reasonable cooperation that may be reasonably requested by Celgene and Purchaser and that is necessary or customary, proper or advisable in connection with Parent’s efforts to arrange and consummate the arrangement of any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations debt financing undertaken by Celgene in contemplation of the Company and its Subsidiaries. Such commercially Transactions, including reasonable efforts shall includecooperation, to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lendersprovide material financial and other pertinent information to Celgene, on a customary Purchaser and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiariestheir financing sources, (b) provideto cooperate with the marketing efforts of Celgene, as promptly as reasonably practicable, information relating to the Company Purchaser and its Subsidiaries to their financing sources for any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information causing Celgene’s and Purchaser’s representatives to be used participate in the preparation meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, a reasonable number of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financingtimes), (c) to assist in with the obtaining preparation of customary payoff letters and instruments of discharge to be delivered at Closing to allow materials for the payoffforegoing and offering documents (including assisting with the preparation of pro forma financial statements meeting the requirements of SEC Regulation S-X) necessary, discharge and termination proper or advisable in full on connection with the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time)financing, (d) cooperate with respect to matters assist Celgene in obtaining consents of Xxxx’s auditors for use of their reports in any materials relating to pledges of collateral to take effect at the Effective Time in connection with such financing, financing and customary “comfort letters,” and (e) assist Parent in obtaining customary legal opinions to provide all documentation and other information required under applicable “know your customer” and anti-money laundering rules and regulations. Neither Juno, its subsidiaries nor any of their representatives shall be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents required to take any action under any of the independent accountants foregoing that is not contingent upon consummation of the Company and its Subsidiaries, including with respect Offer or that would be effective prior thereto or take any corporate actions prior to the auditor consents in connection with any filings with closing of the SECMerger. Anything in this Section 5.13 Neither Juno nor its subsidiaries shall be required to cooperate to the contrary notwithstandingextent that such cooperation would, until in the Effective Time occursgood faith determination of Juno, neither the Company interfere unreasonably with Juno’s or its subsidiaries’ business or operations. Neither Juno nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, subsidiaries shall (i) be required to (a) waive or amend any terms of the Merger Agreement, (b) take any TABLE OF CONTENTS action that will conflict with or violate its organizational documents or any applicable legal requirement, (c) issue any offering or information document, or (d) take any action that would subject it to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee, (ii) enter into any definitive agreement fee or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or make any other agreement or document related to the Debt Financing, payment (iii) unless promptly other than reasonable out of pocket costs that will be reimbursed by Parent, be required to Celgene) or incur any other expenses liability or provide or agree to provide any indemnity in connection with the Debt Financing financing that would be effective prior to the closing. Juno consents to the use of its and its subsidiaries’ logos in connection with the syndication or (iv) be required to take any action in his/her capacity as a director marketing of the Company financing (provided such logos are used in a manner that is reasonable and customary in connection with a financing, and not intended to harm or any of disparage Juno, its Subsidiaries with respect to the Debt Financingsubsidiaries or their marks). Parent shall promptly, upon Upon written request by the CompanyXxxx, Celgene shall promptly reimburse the Company Juno for all reasonable and documented out of out-of-pocket costs incurred by Xxxx or its subsidiaries in connection with their cooperation and indemnify and hold harmless Juno, its subsidiaries and their respective representatives from and against any and all losses, damages, claims, interest, awards, judgments, penalties, settlements, costs or expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by them to the extent they arose out of actions taken by Xxxx, its subsidiaries or their respective representatives pursuant to their cooperation described above except to the extent the foregoing are determined by a final non-appealable judgment of a court of competent jurisdiction to have arisen out of or resulted from the gross negligence or willful misconduct of Juno, any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company its subsidiaries or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives representatives. Celgene and Purchaser acknowledge and agree that obtaining the financing is not a condition to consummation of the Transactions and that Celgene and Purchaser have agreed to pay for the tendered Shares and consummate the Merger and the other Transactions regardless of the availability of the financing and Xxxx’s condition to have complied with or performed in all material respects the obligations, covenants and agreements under the Merger Agreement at or prior to the Offer Acceptance Time will be deemed to have been satisfied with respect to any of Xxxx’s obligations pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financingfinancing.
Appears in 1 contract
Samples: Credit Agreement (Celgene Corp /De/)
Financing Cooperation. Upon (a) Prior to the request of ParentClosing, the Company Seller shall, and shall use its commercially reasonable best efforts to cause its Representatives to, use its and their reasonable best efforts to provide such cooperation as is reasonable cooperation and customary for the Debt Financing as may be reasonably requested in writing by the Purchaser and at Purchaser’s sole cost and expense, in connection with Parent’s efforts any customary bank debt financing to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities be obtained by Purchaser to finance the Acquisition (a “Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially , including using reasonable efforts shall include, to the extent reasonably requested by Parent, commercially reasonable best efforts to: (ai) make available cause the senior management of the Seller, the Holding Companies and the Company Subsidiaries to prospective lenders, on participate in a customary and reasonable basis number of due diligence meetings, drafting sessions, rating agency presentations and meetings with Debt Financing Sources, in each case, at reasonable times and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating prior notice to the Company and its Subsidiaries Seller (but limited to any financing institutions contemplated to arrange and/or provide all or any portion of the one meeting with Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, ; (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any provide to Purchaser and its Debt Financing Sources such customary historical financial and other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed customary operating information as may be reasonably requested in writing by Parent, be required to incur any other expenses Purchaser in connection with the Debt Financing and solely to the extent such information is of the type customarily provided by a borrower in connection with debt financings similar to the Debt Financing and can be prepared by the Seller, the Holding Companies or the Company Subsidiaries without unreasonable effort or undue burden (it being understood and agreed that, notwithstanding anything to the contrary contained herein, none of the Seller, the Holding Companies or the Company Subsidiaries shall be required to provide any Excluded Information); (iii) provide information regarding the Business, Holding Companies and the Company Subsidiaries reasonably necessary to assist the Purchaser in preparing pro forma financial statements if the Purchaser determines such pro forma financial statements are legally required or customary in connection with the Debt Financing, it being understood that the Seller need only assist in the preparation thereof, but shall not be required to independently prepare any separate pro forma financial statements; (iv) be required provide reasonable assistance in connection with the preparation by the Purchaser of (x) customary confidential information memoranda and other customary marketing materials for the Debt Financing and rating agency presentations and (y) the definitive documentation for the Debt Financing, including schedules, providing customary certificates, corporate authorizations and other customary closing documents and definitive agreements, and in the case of secured Debt Financing, facilitating the pledging of collateral for any Debt Financing, in each case, solely to take any action in his/her capacity as a director the extent such materials relate to information concerning the Business, Holding Companies and Company Subsidiaries; (v) furnish no later than four (4) Business Days prior to the closing of the Debt Financing all documentation and other information about the Holding Companies and the Company Subsidiaries required by the Debt Financing Sources to comply with their obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, that has been reasonably requested by Purchaser at least nine (9) Business Days prior to the closing of the Debt Financing. Nothing contained in this Section 6.13 or otherwise shall require any of its Subsidiaries the Holding Companies or the Company Subsidiaries, prior to the Closing, to be an issuer or other obligor with respect to the Debt FinancingFinancing or other financing prior to the Closing. Parent To the extent the Purchaser undertakes equity financing to finance the Acquisition, the Seller shall promptly, upon request by the Company, reimburse the Company for all provide reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by customary cooperation, provided that nothing herein shall require the Company Seller or any of its Subsidiaries Representatives to prepare or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against deliver any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt FinancingExcluded Information.
Appears in 1 contract
Financing Cooperation. Upon (a) Prior to the request of ParentClosing, the Company Seller shall use its commercially reasonable efforts Commercially Reasonable Efforts to provide reasonable to Buyer, at Buyer’s sole cost and expense, cooperation reasonably requested by Buyer that is necessary in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“the Debt Financing”); provided that such cooperation does not unreasonably interfere , including using Commercially Reasonable Efforts to furnish Buyer with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall includeFinancial Statements, to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used assist Buyer in the preparation of a (A) any bank information memoranda (including the delivery of customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) representation letters to the extent reasonably requested required by Parent and/or the Financing Sources to assist marketing documents and (B) materials for rating agency presentations, each as required in preparation of customary offering or information documents to be used for the completion of connection with the Debt Financing, (c) assist in reasonably cooperating with the obtaining marketing efforts of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens Buyer and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior Debt Financing Sources to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be extent required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries and solely with respect to the Debt Financing. Parent shall promptlyAcquired Assets, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them assist Buyer in connection with the arrangement preparation of any pledge and security agreements required in connection with the Debt Financing for the granting of a security interest (and any information used perfection thereof) in collateral (provided that (A) none of the agreements, documents, instruments or certificates shall be executed or delivered except in connection therewith with the Closing, (other than information provided by B) the Company effectiveness thereof shall be conditioned upon, or any of its Subsidiaries) and all other actions taken by become operative after, the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis occurrence of the status of its efforts Closing and (C) no liability shall be imposed on Seller or officers or employees involved). Seller shall use Commercially Reasonable Efforts to arrange and consummate effect such steps as are necessary (as reasonably requested by Buyer) to ensure that, in connection with any Debt Financing, all break fees (including swap break fees) that may be triggered by such Debt Financing involving existing lenders to Seller are minimized to the extent possible.
Appears in 1 contract
Samples: Purchase and Sale Agreement (NextEra Energy Partners, LP)
Financing Cooperation. Upon the request of ParentSubject to Section 6.10(a), the Company shall and shall cause its Subsidiaries, and shall use its commercially reasonable best efforts to provide reasonable cooperation cause their respective Representatives to, at Parent's sole expense, reasonably cooperate in connection with Parent’s efforts to arrange and consummate any amendment to, the arrangement of the Financing or replacement or supplement of, Parent’s credit facilities alternative financing as may be reasonably requested by Parent (“Debt Financing”); provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries or utilize an undue amount of the Company's or Subsidiaries' personnel time). Such commercially reasonable efforts shall include, Subject to the extent reasonably requested immediately preceding sentence, such cooperation by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries and their respective Representatives shall include, at the reasonable request of Parent, (a) participating in a reasonable number of meetings and presentations with prospective lenders (including using reasonable best efforts to make available the Company's senior management for participation in such meetings), (b) using reasonable best efforts to provide information (including any information necessary to facilitate preparation of projections and the pro forma financial statements required pursuant to the Securities Act (including Article XI of Regulation S-X) in connection with the Merger), documents, authorization letters, opinions and certificates, enter into agreements and take other actions that are customary in connection with the Financing or alternative financing institutions contemplated or necessary or desirable to arrange and/or provide all permit Parent to fulfill conditions or any portion obligations under the definitive documentation for the Financing or the alternative financing, (c) furnishing the report of the Debt Financing (Company's auditor on the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, most recently available audited consolidated financial condition, projections and prospects statements of the Company and its Subsidiaries customary for financings similar and using its reasonable best efforts to obtain the consent of such auditor to the Debt Financinguse of such report in accordance with normal custom and practice, (d) using reasonable best efforts to assist in the extent preparation of one or more confidential information memoranda and other marketing and syndication materials reasonably requested by Parent and/or the Financing Sources and (e) using commercially reasonable efforts to assist in preparation procuring any necessary rating agency ratings or approvals. The Company hereby consents to the reasonable use of customary offering its logos in connection with the Financing or information documents to be used for the completion of the Debt any alternative Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge provided that such use is disclosed to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness in writing prior to the Effective Time)time that it is so used, (d) cooperate with respect such logos are used in a manner that could not reasonably be expected to matters relating to pledges harm or disparage the Company, its Subsidiaries or their marks and on such other customary terms and conditions as the Company or applicable Subsidiary shall reasonably impose. Parent shall, promptly upon termination of collateral to take effect at this Agreement, reimburse the Effective Time Company for all reasonable out-of-pocket expenses and costs incurred in connection with such financing, (e) assist Parent the Company's or its Affiliates' obligations under this Section 6.11. Notwithstanding anything in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect this Agreement to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurscontrary, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, Subsidiaries shall (i) be required to pay any commitment or other similar fee, (ii) fee or enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses liability or obligation in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect alternative financing) prior to the Debt FinancingEffective Time. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred All material non-public information provided by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. 6.11 shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Merger Sub shall keep be permitted to disclose such information to the Company informed on a reasonably current basis lenders in respect of the status Commitment Letter and other potential sources of its efforts capital, rating agencies and prospective lenders and investors during syndication of the Financing or any alternative Financing subject to arrange the lenders, potential sources of capital, ratings agencies and consummate any Debt Financingprospective 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).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Charming Shoppes Inc)
Financing Cooperation. Upon (a) Prior to the request of ParentClosing, the Company Seller shall use its commercially reasonable best efforts, and Seller shall cause its controlled Affiliates to use their reasonable best efforts to provide reasonable provide, to the extent within its control, Purchaser, such customary cooperation reasonably requested by Purchaser, at Purchaser’s sole expense, in connection with Parent’s efforts to arrange and consummate any amendment tothe Debt Financing (provided, or replacement or supplement ofhowever, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does requests shall not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially Seller Group), including using their reasonable best efforts shall includeto take the following actions: (i) furnish customary financial information as reasonably requested by Purchaser to enable Purchaser to prepare pro forma financial statements, in each case, to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonably required pursuant to such Debt Financing and to the extent reasonably available; (ii) cause the PP&S Business’ and the Seller Group’s management teams, with appropriate seniority and expertise, at reasonable basis times and upon reasonable notice, appropriate personnel to participate in a limited number of the Company meetings, conference calls, drafting sessions, due diligence sessions and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating similar presentations to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of with the Debt Financing Sources and rating agencies; (the “Financing Sources”iii)(A) (including information to be used in assist with the preparation of a customary rating agency presentations, bank information package regarding the business, operations, financial condition, projections memoranda and prospects of the Company other customary marketing and its Subsidiaries customary for financings similar to the Debt Financing) to the extent syndication materials required or reasonably requested by Parent and/or the Debt Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or Financing; provided, however, that any such customary marketing and syndication materials shall contain disclosure and pro forma financial statements reflecting Purchaser as the obligor; and (ivB) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect execute and deliver customary authorization letters relating to the Debt Financing; (iv) obtain any required release letters and any related Lien releases, terminations and instruments of discharge; and (v) assist with obtaining customary insurance certificates. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective Subject to Purchaser’s indemnification obligations pursuant to, and in accordance with, under this Section 5.135.10, Seller hereby consents to the use of the PP&S Business’ and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them Seller Group’s logos in connection with the arrangement Debt Financing; provided, however, that such logos are used solely in a manner that is neither intended, nor reasonably likely, to harm or disparage the Seller Group or the reputation or goodwill of the Debt Financing Seller Group and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financingmarks.
Appears in 1 contract
Financing Cooperation. Upon (a) Prior to the request of ParentClosing, the Company shall use its commercially reasonable best efforts to, and shall cause its Subsidiaries to use their reasonable best efforts to, and shall use its reasonable efforts to provide reasonable cooperation in connection with Parent’s efforts to arrange cause its and consummate any amendment their Representatives to, or replacement or supplement ofprovide all cooperation reasonably requested by Parent necessary and customary for the arrangement of the Debt Financing (provided, Parent’s credit facilities (“Debt Financing”); provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and or any of its Subsidiaries. Such commercially ), including by (i) participating in a reasonable efforts shall includenumber of meetings (including meetings with prospective Lenders), presentations, road shows, due diligence sessions and sessions with rating agencies, at reasonable times and with reasonable advance notice, (ii) to the extent reasonably requested required by Parentthe Debt Financing, commercially using reasonable efforts to: to facilitate the pledging of, and perfection of security interests in, collateral, effective no earlier than the Effective Time, (aiii) make available to prospective lenders, on a customary furnishing Parent and reasonable basis and upon reasonable notice, appropriate personnel the Lenders as promptly as reasonably practicable the financial statements of the Company and its Subsidiariesconsolidated Subsidiaries required by paragraph 5 in Exhibit D to the Debt Commitment Letter (such financial statements, the “Required Financial Information”) and, following the delivery of a request therefor to the Company by Parent (which notice shall state with specificity the information requested), such financial and other information regarding the Company as is readily available to the Company at such time and is customarily required in connection with the execution of financings of a type similar to the Debt Financing, (biv) if requested by Parent, using reasonable best efforts to assist Parent in connection with Parent’s preparation of customary pro forma financial statements as required by paragraph 7 in Exhibit D to the Debt Commitment Letter; provided, that (x) Parent shall be responsible for the preparation of such pro forma financial statements and any pro forma adjustments giving effect to the Merger and the other transactions contemplated herein and (y) the Company’s assistance shall relate solely to the financial information and data derived from the Company’s historical books and records, (v) in each case following Parent’s reasonable request, using reasonable best efforts to assist Parent and Merger Sub in the preparation of customary (A) confidential information memoranda (including a version that does not include material non-public information) and other customary marketing materials required in connection with financings similar to the Debt Financing, (B) materials for rating agency presentations and (C) definitive documentation for the Debt Financing, (vi) following Parent’s reasonable request, using reasonable best efforts to cause directors and officers who will continue to hold such offices and positions from and after the Effective Time to execute resolutions or consents of the Company and its Subsidiaries that do not become effective until the Effective Time with respect to entering into the definitive documentation for the Debt Financing and otherwise as necessary to authorize consummation of the Debt Financing and (vii) if requested by Parent, provide, as promptly as reasonably practicableat least two (2) Business Days prior to the Closing Date, all documentation and other information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of as is required by applicable “know your customer” and anti-money laundering rules and regulations including the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) USA PATRIOT Act to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, writing at least nine (c9) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness Business 48 Days prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at Closing Date. Notwithstanding the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occursforegoing, neither the Company nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 5.13 that (A) would require the Company, its Subsidiaries or any Persons who are directors of the Company or its Subsidiaries to pass resolutions or consents to approve or authorize the execution of the Debt Financing that is effective prior to the Effective Time or execute or deliver any certificate, document, instrument or agreement or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Effective Time, (B) cause any representation or warranty in this Agreement to be breached by the Company or any of its Subsidiaries, nor (C) require the Company or any of their respective officers or directors, as the case may be, shall (i) be required its Subsidiaries to pay any commitment or other similar fee, (ii) enter into any definitive agreement fee or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses expense, liability or obligation (other than those set forth in this Section 5.13) in connection with the Debt Financing prior to the Closing or (iv) be required to take have any action in his/her capacity as a director obligation of the Company or any of its Subsidiaries under any agreement, certificate, document or instrument be effective until the Closing, (D) cause any director, officer or employee or stockholder of the Company or any of its Subsidiaries to incur any personal liability, (E) conflict with the organizational documents of the Company or its Subsidiaries or any Laws, (F) reasonably be expected to result (with or without notice, lapse of time, or both) in a material violation or breach of, or a default under, any Contract to which the Company or any of its Subsidiaries is a party, (G) provide access to or disclose information that the Company or any of its Subsidiaries determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (H) prepare any financial statements or information that (x) are not available to it and prepared in the ordinary course of its financial reporting practice and (y) would not otherwise be available to it or capable of being prepared by it without undue burden or other than with the use of its commercially reasonable efforts or (I) require the Company or any of its Subsidiaries to enter into any instrument or agreement that is effective prior to the Effective Time or that would be effective if the Closing does not occur. Nothing contained in this Section 5.13 or otherwise shall require the Company or any of its Subsidiaries, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing. Parent shall promptlyshall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out of out-of-pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, the cooperation contemplated by this Section 5.13, 5.13 and shall indemnify and hold harmless the Company, Company and its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses losses suffered or incurred by any of them in connection with the arrangement of the Debt Financing Financing, any action taken by them at the request of Parent pursuant to this Section 5.13 and any information used in connection therewith (other than information provided in writing by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives specifically in connection with its obligations pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Financial Engines, Inc.)
Financing Cooperation. Upon Each of the request Entities shall, and shall cause each of Parenttheir respective officers, the Company shall use its commercially reasonable efforts to provide reasonable cooperation directors, employees, financial advisors, attorneys, accountants and other advisors, investment bankers and other representatives to, cooperate with Parent in connection with Parent’s efforts to arrange comply with its obligations under its existing borrowing facilities and any other financing Parent elects to use to consummate any amendment tothe financing of the transactions contemplated by this Agreement (collectively, or replacement or supplement of, Parent’s credit facilities (the “Debt Parent Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts cooperation shall include, to the extent reasonably requested by Parent, using commercially reasonable efforts to: to (ai) make available to provide direct contact between prospective lenders, financing sources and the appropriate officers and directors of the Entities (including participation in due diligence sessions) at reasonable times and on a customary and reasonable basis and upon reasonable notice, appropriate personnel number of the Company and its Subsidiariesoccasions, (bii) providecooperate with Parent’s preparation of confidential information memoranda, as promptly as reasonably practicablepreliminary offering memoranda, financial information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information other customary materials to be used in connection with obtaining such financing (including the preparation provision of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Timedue diligence materials), (diii) reasonably cooperate with the marketing efforts of Parent and its financing sources for such financing, including use of the Entities’ logos and participate in management presentation sessions, “road shows” and sessions with rating agencies at reasonable times and on a reasonable number of occasions, (iv) provide assistance in obtaining any consents of third parties necessary in connection with such financing, (v) provide assistance in extinguishing the Indebtedness of the Entities and releasing the Liens securing such indebtedness or other obligations, (vi) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (evii) assist cooperate with Parent in obtaining customary legal opinions from Parent’s counsel to be delivered in connection with such financing financing, and (fviii) assist Parent in obtaining customary comfort letters and consents the cooperation of the independent accountants of the Company and its SubsidiariesEntities in connection with such financing, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any delivery of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneysaccountants’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financingcomfort letters.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Energizer Holdings, Inc.)
Financing Cooperation. Upon (a) Prior to the request of ParentClosing, the Company shall provide, and shall cause the Company Subsidiary to provide, and shall use its commercially reasonable best efforts to provide cause its Representatives to provide, on a timely basis, all reasonable cooperation requested by Parent and that is customary in connection with Parent’s efforts the arrangement of the Financing or any Alternate Financing to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities be incurred in connection with the Transactions (“Debt Financing”); provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company), including to (i) facilitate the provision of a credit agreement, guarantees, pledges of collateral and other customary documents in connection with the Financing (in each case, effective as of the Closing), (ii) provide financial and other pertinent information regarding the Company and its Subsidiaries. Such commercially reasonable efforts shall includethe Company Subsidiary as may be reasonably requested in writing by Parent in order to consummate the Financing, in each case indentifying any information that constitutes material non-public information, (iii) provide information with respect to the extent properties and assets of the Company and the Company Subsidiary as may be reasonably requested by Parent, commercially (iv) participate in a reasonable efforts to: number of informational and other meetings in connection with the Financing, (av) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company assist Parent and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used sources in the preparation of all agreements (including review of schedules for completeness), offering documents, an offering memorandum and other marketing materials for the Financing or any such Alternate Financing, it being understood and agreed that information and documents provided by the Company may be delivered to agents and lenders under the Financing Letters and their representatives (subject to customary arrangements for confidentiality that are acceptable to the Company) including consenting to the use of the Company’s and the Company Subsidiary’s logos (provided that such logos are used solely in a customary information package regarding manner that is not intended to or reasonably likely to harm or disparage the business, operations, financial condition, projections and prospects Company or the Company Subsidiary or the reputation or goodwill of the Company or the Company Subsidiary) and its Subsidiaries customary for financings similar (vi) using commercially reasonable efforts to ensure that the Debt Financing) to the extent reasonably requested by Parent and/or syndication of the Financing Sources to assist in preparation of customary offering or information documents to be used for benefits materially from the completion existing lending relationships of the Debt FinancingCompany. No certificate, (c) assist in the obtaining of customary payoff letters and instruments of discharge document or instrument referred to above shall be delivered at Closing to allow for the payoff, discharge and termination in full on effective until the Closing Date of the Existing Credit Facilities Date, and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) not be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement fee or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses liability or obligation in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect prior to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt FinancingClosing Date.
Appears in 1 contract
Financing Cooperation. Upon (a) Prior to the request of ParentClosing, the Company shall use its commercially reasonable best efforts to, and shall cause its Subsidiaries to use their reasonable best efforts to, and shall use its reasonable efforts to provide reasonable cooperation in connection with Parent’s efforts to arrange cause its and consummate any amendment their Representatives to, or replacement or supplement ofprovide, at the expense of Parent’s credit facilities , all cooperation reasonably requested by Parent necessary and customary for the arrangement of the Debt Financing (“Debt Financing”); provided provided, that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and or any of its Subsidiaries. Such commercially ), including by (i) participating in a reasonable efforts shall includenumber of meetings (including meetings with prospective lenders), presentations, road shows, due diligence sessions and sessions with rating agencies, at reasonable times and with reasonable advance notice, (ii) executing and delivering Definitive Agreements and other certificates (including a certificate of the chief financial officer of or person performing similar functions for the Company with respect to solvency matters substantially in the form attached to the extent Debt Commitment Letter) as may be reasonably requested by Parent, commercially and to the extent required by the Debt Financing, using reasonable best efforts to: to facilitate the pledging of, and perfection of security interests in, collateral, in each such case, effective no earlier than the Effective Time, (aiii) make available to prospective lenders, on a customary furnishing Parent and reasonable basis and upon reasonable notice, appropriate personnel the Lenders as promptly as reasonably practicable the financial statements of the Company and its Subsidiariesconsolidated Subsidiaries required by paragraph 4 in Exhibit D to the Debt Commitment Letter (such financial statements, the “Required Financial Information”) and, following the delivery of a request therefor to the Company by Parent (which notice shall state with specificity the information requested), such financial and other information regarding the Company as is readily available to the Company at such time and is customarily required in connection with the execution of financings of a type similar to the Debt Financing, (biv) if requested by Parent, using reasonable best efforts to assist Parent in connection with Parent’s preparation of customary pro forma financial statements as required by paragraph 5 in Exhibit D to the Debt Commitment Letter; provided, that (x) Parent shall be responsible for the preparation of such pro forma financial statements and any pro forma adjustments giving effect to the Merger and the other transactions contemplated herein and (y) the Company’s assistance shall relate solely to the financial information and data derived from the Company’s historical books and records, (v) in each case following Parent’s reasonable request, using reasonable best efforts to assist Parent and Merger Sub in the preparation of customary (A) confidential information memoranda (including a version that does not include material non-public information and executing and delivering one or more customary authorization and representation letters contemplated by the Debt Commitment Letter or otherwise that are customary in the Debt Financing) and other customary marketing materials required in connection with financings similar to the Debt Financing, (B) materials for rating agency presentations and (C) definitive documentation for the Debt Financing, (vi) following Parent’s reasonable request, using reasonable best efforts to cause directors and officers who will continue to hold such offices and positions from and after the Effective Time to execute resolutions or consents of the Company and its Subsidiaries that do not become effective until the Effective Time with respect to entering into the definitive documentation for the Debt Financing and otherwise as necessary to authorize consummation of the Debt Financing and (vii) if requested by Parent, provide, as promptly as reasonably practicableat least three (3) Business Days prior to the Closing Date, all documentation and other information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all as is required by applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and including, if the Company or any portion of its subsidiaries qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certificate (each as defined in the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the businessCommitment Letter), operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, writing at least nine (c9) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness Business Days prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at Closing Date. Notwithstanding the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occursforegoing, neither the Company nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 5.13 that (A) would require the Company, its Subsidiaries or any Persons who are officers or directors of the Company or its Subsidiaries to pass resolutions or consents to approve or authorize the execution of the Debt Financing that is effective prior to the Effective Time or execute or deliver any certificate, document, instrument or agreement (other than the authorization and representation letters referred to in clause (v)(A) above) or agree to any change or modification of any existing certificate, document, instrument or agreement that is effective prior to the Effective Time, (B) cause any representation or warranty in this Agreement to be breached by the Company or any of its Subsidiaries, nor (C) require the Company or any of their respective officers or directors, as the case may be, shall (i) be required its Subsidiaries to pay any commitment or other similar fee, (ii) enter into any definitive agreement fee or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses expense, liability or obligation (other than those set forth in this Section 5.13) in connection with the Debt Financing prior to the Closing or (iv) be required to take have any action in his/her capacity as a director obligation of the Company or any of its Subsidiaries under any agreement, certificate, document or instrument be effective until the Closing, (D) cause any director, officer or employee or stockholder of the Company or any of its Subsidiaries to incur any personal liability, (E) conflict with the organizational documents of the Company or its Subsidiaries or any Laws, (F) reasonably be expected to result (with or without notice, lapse of time, or both) in a material violation or breach of, or a default under, any Contract to which the Company or any of its Subsidiaries is a party, (G) provide access to or disclose information that the Company or any of its Subsidiaries determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, (H) prepare any financial statements or information that (x) are not available to it and prepared in the ordinary course of its financial reporting practice and (y) would not otherwise be available to it or capable of being prepared by it without undue burden or other than with the use of its commercially reasonable efforts or (I) require the Company or any of its Subsidiaries to enter into any instrument or agreement (other than the authorization and representation letters referred to in clause (v)(A) above) that is effective prior to the Effective Time or that would be effective if the Closing does not occur. Nothing contained in this Section 5.13 or otherwise shall require the Company or any of its Subsidiaries, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing. Parent shall promptlyshall, promptly upon request by the Company, reimburse the Company following termination of this Agreement for all reasonable and documented out of out-of-pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, the cooperation contemplated by this Section 5.13, 5.13 and shall indemnify and hold harmless the Company, Company and its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses losses suffered or incurred by any of them in connection with the arrangement of the Debt Financing Financing, any action taken by them at the request of Parent pursuant to this Section 5.13 and any information used in connection therewith (other than information provided in writing by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives specifically in connection with its obligations pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ultimate Software Group Inc)
Financing Cooperation. Upon (a) Prior to the request of ParentClosing, the Company SEE shall, and shall cause its Subsidiaries, and shall use its commercially reasonable best efforts to cause its and their respective Affiliates and Representatives with appropriate seniority and expertise to, at Buyer’s sole cost and expense (subject to the terms herein), provide reasonable to Buyer all cooperation reasonably requested by Buyer that is customary, necessary or reasonably advisable in connection with Parent’s efforts to arrange the arrangement, syndication and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall include, to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion consummation of the Debt Financing (including any offering of notes or other debt securities contemplated by the “Debt Commitment Letter), including: (i) participation in a reasonable number of meetings (including customary one-on-one meetings), presentations, road shows, due diligence sessions, drafting sessions, and sessions with potential lenders under the Debt Financing and rating agencies, in each case, upon reasonable advance notice and at mutually agreeable dates and times, (ii) reasonably cooperating with the marketing and due diligence efforts of the Buyer and the Financing Sources”) (, including information to be used in providing appropriate and customary assistance with the preparation of a customary materials for rating agency presentations and bank books, lender and investor presentations, high-yield offering documents, offering memoranda, prospectuses, bank information package regarding memoranda, and other marketing documents necessary or proper for, or customarily used in connection with the businessDebt Financing, operations, financial condition, projections and prospects including identifying any portion of the Company information that constitutes material, non-public information, and including delivering customary representation letters and authorization letters with respect to and in accordance with the Debt Commitment Letter, (iii) furnishing the Buyer with the Required Bank Information, (iv) reasonably cooperating with updating and correcting any Required Bank Information in order to ensure such Required Bank Information remains Compliant, (v) using reasonable best efforts to obtain from SEE and its Subsidiaries Subsidiaries’ accounting firm accountants’ comfort letters and consents customary for financings similar to the Debt Financing) to the extent , and providing customary information and assistance reasonably requested by Parent and/or the Financing Sources necessary to assist in preparation of customary offering or information documents to be used for the completion of Buyer and its counsel with obtaining the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions required to be delivered in connection with the Debt Financing; (vi) reasonably assisting in the preparation, execution and delivery (limited, in the case of execution and delivery, solely to officers continuing with the Transferred Diversey Companies after the Closing) of one or more credit agreements, indentures, purchase agreements, pledge and security documents and other Definitive Documentation and facilitating the granting of a security interest (and perfection thereof) in collateral, including obtaining releases of existing Encumbrances (to the extent required by this Agreement), in each case, as of or reasonably prior to the Closing and as may be reasonably requested by Buyer; provided that any obligations and releases of Encumbrances contained in all such financing agreements, documents and (f) assist Parent in obtaining customary comfort letters related certificates and consents instruments shall be subject to the occurrence of the independent accountants Closing and become effective no earlier than the Closing; (vii) furnishing a certificate of a financial officer of the Company Transferred Diversey Companies (who is or will be such officer as of and after the Closing) with respect to solvency matters in the form set forth in Annex I to Exhibit D of the Debt Commitment Letter as of the Closing, on a pro forma basis) (viii) furnishing Buyer and its lenders promptly (and in any event at least five (5) Business Days prior to the Closing Date) with all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, and requested by the Debt Financing Sources in writing at least ten (10) Business Days prior to the Closing Date; (ix) using reasonable efforts to cooperate with Buyer to satisfy the conditions precedent to the Debt Financing to the extent within the control of SEE and its Subsidiaries; and (x) preventing the offer, placement or arrangement of any debt securities or syndicated credit facilities by or on behalf of the Transferred Diversey Companies or its Subsidiaries (in each case, other than existing indebtedness of SEE and its Subsidiaries (including the Facility Agreement and the Receivables Purchase Agreement), working capital and other indebtedness incurred in the ordinary course of business and otherwise in accordance with respect the terms of this Agreement, indebtedness disclosed to Buyer on or prior to the auditor consents date hereof and permitted to remain outstanding in connection with any filings accordance with the SECterms of this Agreement, other indebtedness permitted to be outstanding or issued under this Agreement and indebtedness approved by the Buyer in accordance with the terms of this Agreement) if such securities or facilities would have a materially detrimental effect upon the primary syndication of the Debt Financing. Anything Notwithstanding anything in this Section 5.13 5.19 to the contrary notwithstanding, until the Effective Time occurscontrary, neither the Company SEE nor any of its Subsidiaries shall be required to (A) pay any commitment fee or similar fee related to the Financing (other than as are payable by the Transferred Diversey Companies and are contingent upon the Closing or which are concurrently reimbursed by Buyers), (B) reimburse any expenses or provide any indemnities (other than as are payable by the Transferred Diversey Companies and are contingent upon the Closing or which are concurrently reimbursed by Buyers), (C) make any representations or incur any Liability (or cause their respective directors, officers, partners, members, managers, or employees to incur any Liability) or authorize or execute any Definitive Documentation or any other agreement, certificate, document, or instrument related to the Debt Financing that would be effective prior to the Closing, except, as provided in clause (ii) above in respect of customary authorization letters and in clause (vii) above in respect of a solvency certificate, (D) approve or enter into any agreement or binding commitment, except, with respect to Transferred Diversey Companies and their Subsidiaries, nor such agreements as become effective at or after the Closing, (E) cause any director, officer, partner, member, manager, or employee of SEE or its Subsidiaries to incur any personal liability (including that none of the boards of directors (or equivalent bodies) of SEE or its Subsidiaries shall be required to adopt any resolutions or take similar action approving the Debt Financing that would be effective prior to the Closing), excluding the execution of a solvency certificate as contemplated by clause (vii) above and the Debt Commitment Letter at the Closing, (F) take any action that would reasonably be expected to result in the material contravention of, or that would reasonably be expected to result in a material violation or breach of, or a default under, any of the organizational documents of SEE or its Subsidiaries or any Laws, (G) provide access to or disclose information that SEE reasonably determines would jeopardize any Privilege of SEE or its Subsidiaries or would otherwise be restricted from disclosure in accordance with Section 5.11, (H) require SEE to prepare separate financial statements for any of its Subsidiaries (other than in respect of the Transferred Diversey Companies), (I) except as described in clauses (ii) and (vii) above, provide (or have any of their respective officers Representatives provide) any certificates or directorsopinions, as the case may bein each case, shall (i) be required with respect to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (ivJ) be required to take any action that would, or would reasonably be expected to, interfere in his/her capacity as a director any material respect with the business or operations of the Company SEE or any of its Subsidiaries with respect to the Debt FinancingSubsidiaries. Parent shall promptlyBuyer shall, promptly upon request by the CompanySEE, reimburse the Company SEE (or pay in advance) for all reasonable and documented out of out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of SEE, its Subsidiaries or Subsidiaries, and its and their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent 5.19, except to the extent arising from historical information furnished in writing by or on behalf of SEE and Merger Sub shall keep the Company informed on a reasonably current basis its Subsidiaries, including financial statements, audits thereof and preparation of the status of its efforts to arrange and consummate any Debt Financingcarveout financials.
Appears in 1 contract
Financing Cooperation. Upon (a) Prior to and, if applicable, concurrently with the request of ParentClosing, the Company shall, and shall cause its Subsidiaries to, use its commercially and their (and its and their Representatives’) reasonable best efforts to provide reasonable such cooperation as may be reasonably requested by Parent in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt the arrangement of the Financing”); provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall includeWithout limiting the generality of the foregoing sentence, prior to the extent reasonably requested by ParentClosing, commercially the Company shall, and shall cause its Subsidiaries to, use its and their reasonable best efforts to: (ai) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, practicable provide information (financial or otherwise) relating to the Company and its Subsidiaries to any financing institutions contemplated Parent and to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) Sources (including information to be used in the preparation of a customary an information package regarding the business, operations, financial condition, financial projections and prospects of Parent and the Company and its Subsidiaries that is customary or reasonably necessary for financings similar to the Debt Financingcompletion of such financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in connection with Parent’s preparation of customary offering or information documents to be used for the completion of the Debt Financing, (cii) cooperate and assist with the due diligence, rating agency processes and marketing efforts of Parent, its Representatives and the Financing Sources, including participating in a reasonable number of meetings, due diligence sessions and road shows, at times and at locations reasonably acceptable to the obtaining Company and ensuring that any syndication efforts benefit from the existing lending and investment banking relationships of the Company, (iii) reasonably assist Parent in preparing customary offering memoranda, rating agency presentations, lender presentations, confidential information and private placement memoranda, financial statements (including pro forma and projected financial statements), prospectuses and other similar documents, including delivery of (A) audited consolidated balance sheets and related audited statements of income, stockholders’ equity and cash flows of the Company for each of the three (3) fiscal years most recently ended at least 90 days prior to the Closing Date (and audit reports for such financial statements shall not be subject to any “going concern” qualifications), (B) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date and (C) all other historical financial and other information regarding the Company reasonably necessary to permit Parent to prepare pro forma and projected financial statements customary for the Financing or the Alternative Financing, (iv) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including senior management and Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent or the Financing Sources, or as may be requested by the SEC, in connection with the completion of the Financing or the Alternative Financing, (v) provide to Parent and the Financing Sources promptly, and in any event at least three (3) Business Days prior to the Closing Date, all documentation and other information about the Company and its Affiliates required by the Financing Sources or 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 the Commitment Letter to the extent such documentation and other information is requested in writing to the Company at least 10 Business Days prior to the Closing Date, (vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with any filings with the SEC, (vii) obtain customary comfort letters and consents from the Company’s independent public accounting firm for use of their reports in any materials relating to the Financing or the Alternative Financing and in connection with any filings required to be made by Parent with the SEC, (viii) subject to customary confidentiality provisions, provide customary “10b-5” certifications and authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders, (ix) deliver notices of prepayment and/or notices for termination of commitments within the time periods required in connection with the prepayment of any indebtedness or other obligations of the Company, including the Credit Agreement, and obtain customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of such indebtedness or other obligations, including the Existing Credit Facilities and releasing Liens Agreement, (x) reasonably assist with the pledging of collateral and the pledges preparation of collateral securing such Existing Credit Facilitiesthe definitive documentation for the Financing or the Alternative Financing, including by providing information reasonably necessary for the completion of any schedules thereto, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior extent, and solely to the Effective Time)extent, (d) cooperate with respect such materials relate to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of information concerning the Company and its Subsidiaries, including with respect (xi) provide or cause to the auditor consents be provided any customary certificates, or other customary closing documents as may reasonably be requested in connection with the Financing and the Alternative Financing and (xii) consent to the use of the trademarks, service marks and logos of the Company or any filings of its Subsidiaries in connection with the SEC. Anything Financing; provided that such trademarks, service marks and logos are used solely in this Section 5.13 a manner that is not intended to or is reasonably likely to harm or disparage the Company or any of its Subsidiaries and in conformance with the Company’s quality control guidelines and procedures as provided to Parent by the Company prior to the contrary notwithstandingdate of this Agreement (it being understood that all goodwill associated with such use shall inure to the sole benefit of the Company). Notwithstanding the foregoing, until the Effective Time occurs, (1) neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, Subsidiaries shall (i) be required to pay any commitment or other similar fee, (ii) enter into fee or incur prior to the Closing any definitive agreement or have any other liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing Financing, unless Parent reimburses or is required to reimburse or indemnify the Company and its Subsidiaries pursuant to this Agreement or otherwise agrees to do so, (iv2) none of the Company, its Subsidiaries or their respective Representatives shall be required to take execute or enter into or perform any action in his/her capacity agreement with respect to the Financing that is not contingent upon the Closing occurring or that would be effective prior to the Closing (other than the “10b-5” certifications and authorization letters contemplated by clause (viii) of this Section 6.17(a) and for the avoidance of doubt, the boards of directors or other equivalent governing bodies of Parent, Merger Sub, and/or the Surviving Corporation shall enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as a director of may be required by the Financing Sources pursuant to the Commitment Letter at, or as of, the Closing), and (3) nothing shall obligate the Company or any of its Subsidiaries with to (a) take any action in respect of the Financing to the Debt Financing. Parent shall promptly, upon request extent that such action would cause any condition to Closing set forth in Article VII to fail to be satisfied by the Outside Date or otherwise result in a breach of this Agreement by the Company, reimburse (b) take any action to the Company for all reasonable and documented out extent such action would unreasonably interfere with the business or operations of pocket costs (including reasonable attorneys’ fees) incurred by the Company or its Subsidiaries, (c) issue in its own name any bank information memoranda or high-yield offering prospectuses or memoranda required in relation to the Financing (it being understood that any such information memoranda or prospectus or memoranda shall reflect the Surviving Corporation and all or certain of its Subsidiaries as obligors) or their respective Representatives (d) provide, or cause to be provided, any legal opinion by its counsel, or to provide, or cause to be provided, any information or take, or cause to be taken, any action to the extent it would reasonably be expected, in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the reasonable judgment of the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them to result in connection with the arrangement a violation of the Debt Financing and any information used in connection therewith (other than information provided by the Company Company’s or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis ’ organizational documents or applicable Law or loss of the status of its efforts to arrange and consummate any Debt Financingprivilege.
Appears in 1 contract
Financing Cooperation. Upon the request of Parent, the Company shall use its commercially reasonable efforts The Partnership agrees to provide reasonable cooperation in connection with Parent’s efforts to arrange the arrangement and consummate any amendment consummation of, and the negotiation of agreements with respect to, or replacement or supplement of, Parent’s credit facilities (“the Debt Financing and any Alternative Debt Financing”); provided that such cooperation does . In furtherance of and not unreasonably interfere with the ongoing operations in limitation of the Company and its Subsidiaries. Such commercially reasonable efforts foregoing, the Partnership shall include, to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available cause the management of the Partnership, OpCo and their respective Subsidiaries to prospective lendersbe reasonably available, on a customary and reasonable basis and upon reasonable advance notice, appropriate personnel of to Parent and the Company Debt Financing Sources providing the Debt Financing and its Subsidiariesany Alternative Debt Financing to participate in due diligence sessions, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used assist in the preparation of a one or more appropriate and customary information package regarding the business, operations, financial condition, projections offering documents and prospects of the Company assisting Parent and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of providing the Debt Financing, (c) assist Financing and any Alternative Debt Financing in the obtaining of preparing other appropriate and customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilitiesmarketing materials, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time be used in connection with such financingthe Debt Financing and any Alternative Debt Financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (fc) assist Parent in obtaining customary comfort letters and consents of request the independent accountants of the Company and its Subsidiaries, including auditors with respect to the auditor consents Partnership, OpCo and their respective Subsidiaries to prepare and deliver “comfort letters,” dated the date of each offering document used in connection with any filings transaction in connection with the SEC. Anything Debt Financing and any Alternative Debt Financing (with appropriate bring down comfort letters delivered on the closing date of the Debt Financing and any Alternative Debt Financing), in this Section 5.13 compliance with professional standards and otherwise on terms reasonably acceptable to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directorsParent, as the case may be, in each of the foregoing cases as may be necessary and customary in connection with a financing substantially similar to the Debt Financing and any Alternative Debt Financing; provided, however, that the Partnership shall be reimbursed promptly (and in any event with 10 Business Days of providing invoices to Parent) by Parent for all reasonable out-of-pocket expenses incurred by the Partnership in connection with the foregoing. Notwithstanding the foregoing, nothing contained in this Section 6.17 shall require (i) be required any officer, employee, director or consultant of the Partnership, OpCo or any of their respective Subsidiaries to participate in any way with any Debt Financing or any Alternative Debt Financing, any capital markets transactions conducted by or on behalf of Parent, any due diligence sessions, management presentations, roadshows or other marketing activities in connection with any Debt Financing, Alternative Debt Financing or any other capital markets transactions or related transactions by Parent in connection with financing the transactions contemplated by the Transaction Documents, (ii) the Partnership or any management of the Partnership, OpCo or any of their respective Subsidiaries to engage in any action that would interfere unreasonably with the business of the Partnership, OpCo and their respective Subsidiaries, or (iii) the Partnership, OpCo or any of their respective Affiliates to pay any commitment or other similar fee, (ii) enter into any definitive agreement fee or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses liability in connection with the any Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Alternative Debt Financing. Parent shall promptly; provided, upon request by however, that the CompanyGeneral Partner, reimburse the Company for all Partnership and OpCo exercise reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or efforts to make their respective Representatives management reasonably available in connection with their respective obligations obligation to provide reasonable cooperation to the Parent pursuant to, and in accordance with, to this Section 5.13, and 6.17. Parent shall indemnify and hold harmless the CompanyPartnership, its Subsidiaries OpCo and their respective Representatives Affiliates and their respective directors, officers and employees from and against any and all damages, losses, costs, liabilities or expenses Losses suffered or incurred by any of them in connection with the arrangement and completion of the any Debt Financing or any Alternative Debt Financing, capital markets transactions or related transactions by Parent in connection with financing the transactions contemplated by the Transaction Documents and any information used utilized in connection therewith (other than except with respect to information provided in respect of the Partnership, OpCo and their respective Subsidiaries supplied by the Company Partnership and its Representatives specifically for inclusion or incorporation by reference therein, to the extent such Losses are not caused by a breach by the General Partner, Partnership or OpCo of this Agreement or otherwise caused by the gross negligence or willful misconduct of the General Partner, Partnership, OpCo or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt FinancingAffiliates.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Purchase Agreement (8point3 Energy Partners LP)
Financing Cooperation. Upon (a) The Company acknowledges that Parent intends to obtain debt financing to finance all or a portion of the request Merger Consideration (the “ Proposed Financing ”) . Notwithstanding anything to the contrary contained herein, Parent agrees that (i) prior to the Closing, none of the Company or any of its Subsidiaries shall have any liability (whether in 56 contract, tort or otherwise) for any one or more of the representations, warranties, covenants, agreements or other obligations under the agreements for the Proposed Financing, (ii) such Proposed Financing shall not contain any restrictive covenant or other obligations that are required to be performed or complied with by the Company or any of its Subsidiaries prior to the Closing, and (iii) the obligations of Parent and Acquisition Sub under this Agreement are not subject to any conditions regarding Parent’s, its Affiliates’, or any other Person’s ability to obtain the Proposed Financing or any other financing for the consummation of the transactions contemplated hereby . (b) Until the Closing, subject to the other terms and conditions of this Agreement, the Company shall use its commercially reasonable best efforts to provide provide, and to cause its Subsidiaries and its and their respective Representatives to provide, upon the reasonable request of Parent, reasonable and customary cooperation in connection with the Proposed Financing (to the extent not in violation of this Agreement), including by : (i) reasonably cooperating with any customary due diligence process as reasonably requested by Parent’s efforts , including instructing appropriate members of senior management to arrange and consummate participate in a reasonable number of meetings, if any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided it being understood that such cooperation does not unreasonably interfere meetings may occur telephonically or by videoconferencing) in connection with the ongoing operations Proposed Financing upon reasonable advance notice and at mutually agreeable dates and times ; (ii) providing pertinent historical financial information as is reasonably available to the Company, customarily required for completion of debt financings similar to the Company Proposed Financing and reasonably requested by Parent in order to obtain or in connection with such financing, including the Required Information ; (iii) reasonably assisting Parent in its Subsidiaries. Such commercially reasonable efforts shall include, preparation of customary offering and marketing documents (and any supplements thereto) required in connection with the Proposed Financing ; and (iv) to the extent reasonably requested by Parent, commercially reasonable efforts to: requesting the consent of, and customary comfort letters from, the Company’s independent accountants (aand providing customary management letters and requesting legal letters to obtain such consent) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel if necessary for Parent’s use of the Company and Company’s financial statements . Notwithstanding the foregoing, none of the Company, any of its Subsidiaries, Subsidiaries nor any of their respective Representatives shall be required to take or permit the taking of any action pursuant to this Section 6 . 10 (b) providethat would : (A) require the Company, as promptly as reasonably practicable, information relating to the Company and any of its Subsidiaries or any of their respective Representatives to pass resolutions or consents to approve or authorize the execution of the Proposed Financing, or to enter into or execute any certificate, document, instrument or agreement or agree to any financing institutions contemplated to arrange and/or provide all change or modification of any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the businessexisting certificate, operationsdocument, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings instrument or agreement or take any other similar to the Debt Financing) action to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness action would be effective prior to the Effective TimeClosing (other than signing customary authorization letters), (dB) cooperate with respect require the Company, any of its Subsidiaries or any of their respective Representatives to matters relating to pledges of collateral to take effect at the Effective Time pay any commitment or other similar fee or incur any other expense, liability or obligation in connection with such financing, (eC) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents cause any director, officer, employee or stockholder of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or any of their respective Representatives to incur any personal liability or take action that could reasonably be expected to result in connection such liability, (D) conflict with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the organizational documents of the Company, any of its Subsidiaries and or any of their respective Representatives from and against or any and all damagesLaws, losses(E) reasonably be expected to result in a violation or breach of, costsor a default (with or without notice, liabilities lapse of time, or expenses suffered or incurred by both) under, any Contract to which the Company, any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company its Subsidiaries or any of its Subsidiariestheir respective Representatives is a party, (F) and all other actions taken by require the Company, any of its Subsidiaries and or any of their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep provide access to or disclose information that could jeopardize any attorney - client privilege or other applicable privilege of such Person ( provided , however, that the Company informed on a reasonably current basis of the status of its shall use commercially reasonable efforts to arrange and consummate any Debt Financing.provide such access or disclose such information in a manner that would not jeopardize such attorney - client or other
Appears in 1 contract
Samples: Execution Version Agreement and Plan of Merger (Magna International Inc)
Financing Cooperation. Upon the request of ParentVE shall, the Company and shall cause its Subsidiaries to, and shall use its commercially all reasonable efforts to cause its and its Subsidiaries’ respective Representatives to, provide reasonable cooperation in connection with Parent’s efforts to arrange the arrangement by VI of financing in the public or private capital markets or bank debt market for the purpose of financing the Share Purchase and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities the fees and expenses incurred in connection therewith (the “Debt Financing”); provided that such cooperation does not unreasonably interfere with , as may be reasonably requested by VI, including: (a) using all reasonable efforts to furnish VI and its underwriters or financing sources, on a reasonably prompt basis, the ongoing operations Required Information (but in relation to clause (c) of the Company definition of Required Information, only such financial statements, financial data, audit reports and other information regarding VE and its Subsidiaries. Such commercially Subsidiaries pursuant to clause (c) of the definition of Required Information that are reasonably obtainable by VE), and using all reasonable efforts shall include, to furnish any other information relating to VE and its Subsidiaries that is customary or reasonably necessary for the completion of such Financing to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources VI to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered the Financing or otherwise in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents the marketing or placement of the Financing; (b) using all reasonable efforts to cause VE’s and any of its Subsidiaries’ independent accountants accountants, as reasonably requested, to provide reasonable assistance to VI consistent with their customary practice (including to consent to the use of their audit reports on the Company consolidated financial statements of VE and its Subsidiaries, including with respect in any materials relating to the auditor consents Financing or in connection with any filings made with the SEC. Anything in this Section 5.13 SEC or pursuant to the contrary notwithstandingSecurities Act or the Securities Exchange Act, until and to provide any “comfort letters” (including drafts thereof) necessary and reasonably requested by VI and its underwriters or financing sources in connection with any capital markets transaction comprising a part of the Effective Time occursFinancing (which such accountants would be prepared to issue at the time of pricing and at closing of any offering or placement of the Financing), neither the Company nor any of its Subsidiariesin each case, nor any of on customary terms and consistent with their customary practice) and to participate in reasonable and customary due diligence sessions with such underwriters or financing sources and their respective officers or directorsRepresentatives; (c) participating in a reasonable number of meetings, as the case may bepresentations, shall (i) be required to pay any commitment or other similar feeroad shows, (ii) enter into any definitive agreement or have any liability or any obligation under any certificatemanagement due diligence sessions, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses drafting sessions and sessions with rating agencies in connection with the Debt Financing Financing; (d) using all reasonable efforts to make available to VI and its underwriters or financing sources and their respective Representatives such documents and other information concerning VE and its Subsidiaries and their respective businesses, that are reasonably obtainable by VE, as is reasonably requested and provided in connection with - 38 - due diligence investigations of issuers for purposes of a securities offering registered under the Securities Act; and (e) using all reasonable efforts to assist with the preparation of materials for prospectuses, offering documents (including pro forma financial statements to be included therein), bank information memoranda, rating agency presentations and similar documents required in connection with the Financing, provided, that, in each case, such requested cooperation shall not (i) unreasonably interfere with the ongoing operations of VE and its Affiliates, or (ivii) be required to take require any action in his/her capacity as a director of the Company commitment by VE or any of its Subsidiaries with respect to Affiliates other than as expressly set forth in clauses (a) – (e) above that will be binding unless and until the Debt FinancingClosing shall occur. Parent shall promptlyVI shall, promptly upon request by the CompanyVE, reimburse the Company VE for all reasonable and documented out of out-of-pocket costs (including reasonable attorneys’ fees) and expenses incurred by the Company VE or any of its Subsidiaries Affiliates or their respective Representatives in connection with their respective obligations pursuant tosuch cooperation (other than such costs incurred in connection with the preparation of the Required Information in the ordinary course of business consistent with past practice, and which shall not, except to the extent otherwise provided in accordance withSection 6.7(d), this Section 5.13, and be reimbursed). VI shall indemnify and hold harmless the Company, VE and its Subsidiaries and their respective Representatives Affiliates from and against any and all damages, losses, costs, liabilities or expenses Liabilities suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used utilized in connection therewith (other than information provided by in each case, except to the Company extent that any such Liabilities are suffered or incurred as a result of VE’s or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and Affiliates’ or any of their respective Representatives Representatives’ gross negligence, bad faith, willful misconduct or material breach of this Agreement, as applicable. VE shall have the right to consent to the use of its and its Affiliates’ logos in connection with the Financing (which consent shall not be unreasonably withheld, conditioned or delayed). Except for any confidential information required to be included in any registration statement or prospectus in connection with the Financing, all non-public or otherwise confidential information regarding VE obtained by VI pursuant to this Section 5.136.6 shall be kept confidential in accordance with the Confidentiality Agreement; provided, that VI shall be permitted to share all information subject to such agreement with its potential underwriters and financing sources and their Representatives, subject to customary confidentiality undertakings reasonably satisfactory to VE being given by such potential underwriters and financing sources with respect thereto. Parent Notwithstanding anything to the contrary in this Section 6.6, VI acknowledges and Merger Sub shall keep agrees that its obligation to consummate the Company informed Share Purchase on a reasonably current basis the terms and subject to the conditions set forth herein are not contingent on the arrangement of any debt or equity financing (including the Financing) or the receipt of the status of its efforts to arrange and consummate any Debt Financing.proceeds therefrom. 6.7
Appears in 1 contract
Samples: Transaction Agreement
Financing Cooperation. Upon (a) Subject to the request right of ParentBuyer to consummate a Replacement Financing, or another financing contemplated by Section 8.5(c), Buyer shall use reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Company Debt Financing on the terms and conditions described in the Debt Commitment Letters as promptly as practicable following the date of this Agreement, including using its reasonable best efforts to (i) comply with and maintain in effect the Debt Commitment Letters, negotiate and enter into definitive financing agreements with respect to the Debt Financing on the terms and conditions contained in the Debt Commitment Letters (the “Financing Agreements”) (and comply with and maintain in effect the Financing Agreements after the same become effective), (ii) satisfy on a timely basis all conditions to obtaining the Debt Financing set forth in the Debt Commitment Letters and the Financing Agreements relating to the Debt Financing, and (iii) consummate the Debt Financing at or prior to the Closing. Buyer shall use its commercially reasonable best efforts to provide reasonable cooperation enforce its rights under the Debt Commitment Letters in connection with Parent’s efforts the event of a breach by the Debt Financing Sources. Buyer shall not amend, modify or agree to arrange and consummate any amendment waiver under the Debt Commitment Letters or its Existing Credit Agreement (as defined in the Debt Commitment Letters), without the prior written approval of the Company, if such amendment, modification, or waiver would, or would reasonably be expected to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with i) reduce the ongoing operations aggregate amount of the Company and its Subsidiaries. Such commercially reasonable efforts shall includeDebt Financing from that contemplated by the Debt Commitment Letters in any manner that would adversely impact the ability to pay the Merger Consideration on the Closing Date, (ii) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the extent reasonably requested by Parentreceipt of the Debt Financing in a manner materially adverse to Buyer, commercially reasonable efforts to: (aiii) materially delay (taking into account the proviso in Section 2.3) or prevent the Closing, (iv) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion funding of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects or satisfaction of the Company and its Subsidiaries customary for financings similar conditions to obtaining the Debt Financing) less likely to occur or (v) adversely impact (A) the ability of Buyer to consummate the transactions contemplated by this Agreement to be consummated at the Closing, (B) the likelihood of the consummation of such transactions to be consummated at the Closing or (C) the ability of Buyer to enforce its rights against the other parties to the extent reasonably requested by Parent and/or Debt Commitment Letters or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time Agreements (it being understood that the Company shall Debt Commitment Letters may be amended to include additional lenders, lead arrangers, bookrunners, syndication agents or similar entities that have no obligation to pay or discharge any such indebtedness prior to not executed the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents Debt Commitment Letters as of the independent accountants date hereof if the addition of such additional parties, individually or in the Company and its Subsidiariesaggregate, including with respect to would not prevent, delay or impair the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any availability of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director the consummation of the Company or any transactions contemplated hereby). For purposes of its Subsidiaries with respect this Agreement, references to “Debt Financing” shall include the financing contemplated by the Debt Financing. Parent shall promptly, upon request Commitment Letters as permitted to be amended or modified by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, 8.5 and references to “Debt Commitment Letters” shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities include such documents as permitted to be amended or expenses suffered or incurred modified by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing8.5.
Appears in 1 contract
Financing Cooperation. Upon the request of ParentPrior to Closing, the Company Seller shall, and shall use commercially reasonable efforts to cause its representatives to, use commercially reasonable efforts to provide reasonable cooperation to Buyer and Buyer’s Affiliates, such assistance with any of Buyer’s financing efforts related to this Agreement as is reasonably requested by Buyer in connection with Parent’s arranging and obtaining the financing, including using commercially reasonable efforts to arrange provide the following: (i) reasonable cooperation with the due diligence requests of Buyer’s financing sources with respect to the Business to the extent customary, (ii) promptly once available, furnishing Buyer with financial information related to the Business and consummate assisting Buyer in its preparation of any amendment topro forma financial statements to the extent related to the Business, or replacement or supplement of(iii) assisting Buyer, Parentits representatives and potential financing sources in preparing information regarding the Business, operations and projections of the Business, (iv) providing all documentation and information about the Business as is reasonably requested by Buyer at least three (3) Business Days prior to the Closing Date in connection with any potential financing efforts. Seller hereby consents to the use of all of the Business’s credit facilities (“Debt Financing”); logos in connection with the Buyer’s financing efforts, provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage Companies. Notwithstanding the foregoing, nothing in this Section 5.27 shall require Companies to (A) provide any cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall include, to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel it would interfere unreasonably with the Business or operations of the Company and its SubsidiariesSeller, (bB) providepay any commitment or similar fee or make any other payment in connection with such financing or enter into any agreement, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all document or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time instrument in connection with such financing, (eC) assist Parent in obtaining customary legal opinions to be delivered make any representation or warranty or deliver any certificate in connection with such financing and or the marketing or arrangement thereof or (fD) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiariesprovide any cooperation, including with respect or take any action, that would cause any condition to the auditor consents in connection with any filings with the SEC. Anything Closing set forth in this Section 5.13 Agreement to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) fail to be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financingsatisfied.
Appears in 1 contract
Financing Cooperation. Upon (a) During the request period from the date of Parentthis Agreement to the earlier of the Effective Time and the valid termination of this Agreement in accordance with its terms, the Company and the Company Subsidiaries shall, and the Company shall use its commercially reasonable best efforts to cause its and their Representatives to, provide reasonable to Parent and Sub all cooperation that is reasonably requested by Parent and that is customary in connection with Parent’s efforts the arrangement of debt and equity financings (including without limitation, any portion of the contemplated Financing) in acquisition transactions (including, without limitation, any post Effective Time refinancing thereof which may be commenced and/or undertaken by Parent and Sub during the period from the date of this Agreement to arrange the earlier of the Effective Time and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”the valid termination of this Agreement in accordance with its terms); provided provided, however, that no such requested cooperation does not may unreasonably interfere with the ongoing operations of the Company and its the Company Subsidiaries. Such commercially reasonable efforts cooperation shall include, without limitation, (i) furnishing Parent, Sub and their Financing Sources as promptly as practicable with financial and other pertinent information regarding the Company and the Company Subsidiaries as may be reasonably requested in writing by Parent and identifying any portion of such information that constitutes material non-public information, (ii) in each case, upon reasonable notice and in reasonably convenient locations, making senior management of the Company available to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with prospective financing sources, investors and rating agencies in connection with the extent Financing, (iii) assisting with the preparation of customary materials for rating agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), offering documents, private placement memoranda, bank information memoranda, prospectuses and all other material to be used in connection with the Financing (including customary authorization and management representation letters) and all documentation and other information required in connection with applicable "know your customer" and anti-money laundering rules and regulations, including U.S.A. Patriot Act of 2001, (iv) using reasonable best efforts to obtain accountant's comfort letters as reasonably requested by Parent, commercially reasonable efforts to: (av) make taking all corporate actions, including filing for any required consents or approvals, subject to and only effective upon the occurrence of the Effective Time, required to permit the consummation of the Financing and to permit the proceeds thereof to be made available to prospective lendersthe Surviving Corporation immediately after the Effective Time, on a customary (vi) providing, as soon as prepared and reasonable basis and upon reasonable noticemade available to the Company management team, appropriate personnel unaudited consolidated monthly financial statements of the Company (excluding footnotes) consisting of a balance sheet, income statement and its statement of cash flows, (vii) filing a Quarterly Report on Form 10-Q within forty-five (45) calendar days after the end of each fiscal quarter end, which shall comply as to form in all material respects with the applicable requirements of the Exchange Act and shall contain the Company's unaudited financial statements, (viii) permitting officers of the Company who will be officers of the Surviving Corporation after the Effective Time to execute and deliver any pledge and security documents, other definitive financing documents or other certificates or documents (but in each case, not effective prior to the Effective Time) as may be reasonably requested by Parent (including a certificate of the chief executive officer or chief financial officer of the Company with respect to solvency matters and using reasonable best efforts to obtain consents of accountants to use their reports in any materials relating to the Debt Financing) and otherwise reasonably facilitating the pledging of collateral, including without limitation, by taking all necessary action to facilitate the elimination of any Lien on any of the properties or assets of the Company or any of the Company Subsidiaries, other than Permitted Liens, (bix) providepromptly after providing to any agent or lender under the Existing Credit Agreements, providing true and correct copies of any borrowing base certificates, compliance certificates and/or other notices, certificates and documents provided to any agent or lender from time to time under or pursuant to any of the Existing Credit Agreements (and/or under or pursuant to any of the collateral or security Contracts related to any of the Existing Credit Agreements), (x) providing, as promptly soon as reasonably practicableprepared and made available to the Company management team following the completion of each week, weekly sales and gross margin information relating with respect to the Company and its the Company Subsidiaries in the format that such information is currently prepared by the Company and the Company Subsidiaries, (xi) with respect to the Owned Real Property, providing Parent copies of any financing institutions contemplated existing title policies and surveys in the possession or under the direction or control of the Company or any Company Subsidiary, and permitting officers of the Company who will be officers of the Surviving Corporation after the Effective Time to arrange and/or provide execute and deliver usual and customary deeds conveying all or any portion of the Debt Financing Owned Real Property to the purchaser thereof, usual and customary survey affidavits of "no-change" to the title company (with respect to any Owned Real Property with no changes from the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects date of the Company existing survey) and its Subsidiaries reasonable and customary documents for financings similar the issuance of title policies, including owners' affidavits, transfer tax documents and corporate authority documents, (xii) in connection with the PLCC Portfolio Sale, provide to the Debt Financing) to the extent Parent and Sub all cooperation and information that is reasonably requested by Parent and/or the Financing Sources to assist in preparation of and that is customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents the arrangement of the independent accountants of the Company and its Subsidiariesa private label credit card portfolio sale, including with respect to the auditor consents without limitation, usual and customary compliance information and financial information, and cooperation in making and filing any required notices or filings in connection with any filings with obtaining any required consent or approval of any Governmental Authority in connection therewith and (xiii) otherwise taking reasonable actions within its control to cooperate in satisfying the SEC. Anything conditions precedent set forth in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers Debt Commitment Letter or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or any condition precedent to obtaining the proceeds of the Financing contemplated by any of the Permissive Debt Financings; provided, however, that (ivA) be required to take any action in his/her capacity as a director no obligation of the Company or any of its Subsidiaries with respect to under any certificate, agreement, notice or other document or instrument shall be effective until the Debt Financing. Parent shall promptlyEffective Time, upon request by the Company, reimburse the Company for all reasonable and documented out none of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries shall be required to pay or their respective Representatives incur any liability for any commitment or other similar fee, pay or incur any liability for any expense (other than as provided in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against Agreement) or incur any and all damages, losses, costs, liabilities other obligation or expenses suffered or incurred by any of them liability in connection with the arrangement of Financing prior to the Debt Financing Effective Time and any information used in connection therewith (other than information provided by B) neither the Company nor any Company Subsidiary, nor any of their respective directors or officers shall be required to take any action to authorize or approve the Financing (or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Alternative Debt Financing) prior to the Effective Time.
Appears in 1 contract
Financing Cooperation. Upon (a) During the request of ParentInterim Period, Seller and the Company shall will use its commercially reasonable efforts to provide reasonable cooperation such assistance (and to cause their Subsidiaries and its and their respective personnel and advisors to provide such assistance) with any financing of Buyer or any of its Subsidiaries in connection with Parent’s efforts to arrange the Transactions as is reasonably requested by Buyer and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with is customary. Without limiting the ongoing operations generality of the Company and its Subsidiaries. Such foregoing, such assistance will include using commercially reasonable efforts shall include, to in each of the extent reasonably requested by Parent, commercially reasonable efforts tofollowing: (ai) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, furnishing Buyer, its Affiliates and any financing sources with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Buyer and such other information that is reasonably available or readily obtainable regarding the Company and its Subsidiaries that is reasonably requested by Buyer and is reasonably necessary to assist Buyer in preparing pro forma financial statements; (ii) reasonably assisting with the preparation of lender and investor presentations, rating agency presentations, and similar documents and materials, in connection with any financing; (iii) participating in a reasonable number of meetings and presentations with prospective lenders, and sessions with ratings agencies, in each case upon reasonable notice and at mutually agreeable dates and times in connection with any such financing; (iv) providing customary authorization letters to any financing source, (v) providing documentation and other information required in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and beneficial ownership regulations, (vi) causing its independent accountants to provide assistance and cooperation with any offering of securities, including providing any necessary written consents to use their audit reports relating to the Company and its Subsidiaries and to be named as an “Expert” in any document related to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (fvii) assist Parent in obtaining cooperate with any financing sources’ due diligence, to the extent customary comfort letters and consents or reasonable); provided, however, that (x) nothing herein will require such cooperation to the extent it would (A) unreasonably disrupt the conduct of the independent accountants of Company’s and the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their ’ respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing businesses or (ivB) be required to take any action in his/her capacity as a director of require the Company or any of its the Subsidiaries with respect or any of the Company Representatives to pay any fees or expenses or otherwise incur any Liability or give any indemnities prior to the Debt Financing. Parent shall promptlyClosing Date, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ feesy) incurred any documentation executed by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, will not become effective until the consummation of the Closing and in accordance with, this Section 5.13, and shall indemnify and hold harmless (z) neither the Company, Company nor any of its Subsidiaries and their respective Representatives from and against will be required to pass resolutions or consents or approve or authorize the execution of any and all damagesfinancing arrangements prior to the Closing, losses, costs, liabilities except to the extent the effectiveness of such authorization or expenses suffered or incurred by any the effectiveness of them in connection with such arrangement is conditioned upon the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by Closing. Such assistance will not require the Company or any of its Subsidiaries) Affiliates to agree to any contractual obligation relating to such financing that is not conditioned upon the Closing and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant that does not terminate without Liability to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status or any of its efforts to arrange and consummate any Debt FinancingAffiliates upon the termination of this Agreement.
Appears in 1 contract
Financing Cooperation. Upon Without limiting the request generality of ParentSection 7.02 or Section 7.05, and to assist the Parent in its financing efforts, the Company shall use its commercially reasonable efforts agrees to provide reasonable cooperation in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere reasonably cooperate with the ongoing operations arrangement of the Company and its Subsidiaries. Such commercially reasonable efforts shall includeFinancing, to the extent reasonably requested including by Parent, commercially reasonable efforts to: (a) make available preparing and providing to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company Parent and its Subsidiaries, (b) provideFinancing Sources, as promptly as reasonably practicablepracticable after Parent’s written request therefor, all customary and reasonably available financial and other information relating with respect to the Company and each of its Subsidiaries and the transactions contemplated hereby and by the Financing, including, to any financing institutions contemplated the extent as would be required by Rule 3-05 and Article 11 of Regulation S-X to arrange and/or provide all or any portion be filed on a Form 8-K by Parent, regardless of the Debt Financing timing of such filing, (the “Financing Sources”i) (including information to be used in the preparation of a customary information package regarding the business, operations, audited consolidated annual financial condition, projections and prospects statements of the Company and its Subsidiaries (ii) unaudited interim consolidated financial statements of the Company (which shall have been reviewed by the independent accountants for the Company as provided in Statement on Auditing Standards No. 100), (b) providing as promptly as reasonably practicable after Parent’s written request therefor any information reasonably necessary to assist Parent with the preparation of customary for financings similar pro forma financial statements that meet the requirements of Regulation S-X and all other applicable accounting rules and regulations of the SEC promulgated thereunder and required to be included in a Registration Statement on Form S-3 under the Debt Financing) to the extent 1933 Act or reasonably requested and customarily required by Parent and/or the Financing Sources to assist be included in preparation of customary any offering or information documents to be used for the completion of the Debt Financing, Financing and (c) assist using commercially reasonable efforts to cause the Company’s independent accountants to cooperate with the Financing Sources in the obtaining of a manner consistent with their customary payoff letters practice and instruments of discharge to be delivered at Closing to allow for the payoff, discharge participate in customary auditor due diligence calls and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time provide customary accountants’ “comfort letters” (including customary “negative assurances”) (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be comfort letters delivered in connection with such financing the Company’s public offerings shall be deemed to be customary for purposes of this Section 7.06) and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any inclusion of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses audit reports in connection with the Debt Financing if historical financial statements or (iv) be required to take any action in his/her capacity as a director other financial information of the Company or are included in any of its Subsidiaries with respect to offering documents for the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing.
Appears in 1 contract
Financing Cooperation. Upon (a) From the request date of Parentthis Agreement until the Closing, or the Company shall earlier termination of this Agreement in accordance with Article IX, (i) Seller agrees to use its commercially reasonable efforts to provide reasonable cooperation in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with and to cause the ongoing operations of the Company Group Companies and its Subsidiaries. Such commercially reasonable efforts shall includeand their respective Affiliates and Representatives and, to the extent of its rights under the Existing LLC Agreement and the Existing Joint HoldCo LLC Agreement to do so, shall cause Orsted and the Group Companies to, provide, at Buyer’s sole cost and expense, such customary cooperation as may be reasonably requested by ParentBuyer in connection with the obtainment, commercially reasonable efforts arrangement, marketing and syndication of, and the satisfaction on a timely basis of all relevant conditions precedent to, the closing of the Debt Financing and (ii) the Seller shall, and, to the extent of its rights under the Existing LLC Agreement and the Existing Joint HoldCo LLC Agreement to do so, shall cause Orsted and the Group Companies to, deliver to Buyer the Required Information as promptly as practicable once available. Such assistance shall include, but not be limited to: (aA) make available to prospective lendersreasonable participation by appropriate senior management, on a customary officers, employees, advisors and reasonable basis and upon reasonable notice, appropriate personnel other representatives of the Company Group Companies at reasonable times, with reasonably advanced notice and its Subsidiariesin a reasonable number of lender meetings, due diligence sessions, rating agency presentations, and other similar customary meetings with the Debt Financing Sources, (bB) provideassisting Buyer and the Debt Financing Sources in preparing confidential information memoranda, rating agency presentations and similar customary syndication documents and other marketing materials, (C) furnishing Buyer at least four (4) Business Days prior to the Closing Date with all documentation and other information in respect of the Group Companies that any Debt Financing Source has reasonably requested in writing at least ten (10) Business Days prior to the Closing Date that is required by Governmental Authority under applicable “beneficial ownership,” “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act of 2001, as amended, (D) assisting Buyer in connection with the preparation by Buyer of disclosure schedules in respect of the Debt Financing (as may be reasonably requested by Buyer or the Debt Financing Sources and are customary for financings of the type contemplated by the Debt Commitment Letter), (E) cooperating with the Debt Financing Sources’ reasonable due diligence requests, (F) assisting Buyer in obtaining ratings in connection with the Debt Financing, (G) furnishing to Buyer and the Debt Financing Sources, as promptly as reasonably practicable, information relating practicable after the date of this Agreement and prior to the Company Closing, the Required Information and its Subsidiaries (H) furnishing to any financing institutions contemplated to arrange and/or provide Buyer all or any portion documentation and information in respect of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent Seller Parties reasonably requested by Parent and/or the Financing Sources Buyer related to assist in preparation of customary offering or information documents to be used for the completion financial condition and credit ratings of the Debt FinancingSeller and/or Seller Parent, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoffincluding, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilitiesbut not limited to, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including rating agency presentations with respect to the auditor consents in connection with any filings with Seller and/or Seller Parent previously prepared by the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers Seller or directorsSeller Parent, as applicable. For the case may beavoidance of doubt, shall the Parties hereby acknowledge and agree that (ix) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to information provided by the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses Group Companies in connection with the Debt Financing may only be provided to sources or (iv) potential sources of financing and rating agencies that have agreed to be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request bound by the Company, reimburse the Company for all reasonable and documented out of pocket costs customary confidentiality provisions (including reasonable attorneys’ fees“click-thru” confidentiality provisions), (y) incurred by the Company Seller will not be obligated to prepare any pro forma financial statements or other pro forma information and (z) any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, pro forma financial information and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of Seller in its Subsidiaries) discretion that may be reasonably and all other actions taken timely requested by the CompanyBuyer concerning the assumptions underlying the post-Closing or pro forma adjustments to be made in such pro forma financial statements, its Subsidiaries and their respective Representatives pursuant to this Section 5.13will in all respects be the sole responsibility of Buyer. Parent and Merger Sub shall keep Further, until the Company informed on a reasonably current basis date that is two hundred seventy (270) days following COD of the status Revolution Wind Project, or the earlier termination of its efforts this Agreement in accordance with Article IX, Seller will reasonably consider providing customary cooperation to arrange and consummate any Debt FinancingBuyer to obtain financing for the Projects.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Eversource Energy)
Financing Cooperation. Upon (a) In connection with any contemplated obtainment of Debt Financing, prior to the request of ParentClosing, at Buyer’s expense to the Company extent subject to the expense reimbursement provisions in Section 7.22(b), Seller shall use its commercially reasonable efforts to provide (and shall use commercially reasonable efforts to cause its Representatives to provide) to Buyer (at Buyer’s sole expense) such cooperation as may be reasonably requested by Buyer to assist them in arranging the Debt Financing. provided, that such requested cooperation does not require the Seller or any of its Affiliates to (A) engage in any action that would adversely interfere with the business or operations of the Seller or such Affiliate or (B) pay any fee or incur any other liability in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“the Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts cooperation shall include, to the extent reasonably requested by Parent, commercially reasonable efforts but not be limited to: (a) make available to prospective lenders, furnishing on a customary and reasonable confidential basis and upon reasonable notice, appropriate personnel of the Company to Buyer and its SubsidiariesRepresentatives and the Financing Sources, within a reasonable time period consistent with the Seller’s past practice, such historical financial information and other pertinent historical information regarding the Business, the Purchased Assets and the Assumed Obligations as may be reasonably requested by Buyer in connection with the Debt Financing; provided that such assistance shall be limited solely with respect to information and data derived from the Seller’s historical books and records; (b) provide[reserved] (c) participation in a reasonable number (with reasonable advance notice) of meetings, presentations, road shows, due diligence sessions and drafting sessions with prospective lenders and with rating agencies, including direct contact between senior management of Seller, on the one hand, and the actual and potential Financing Sources, on the other hand, and other customary syndication activities, (d) facilitating the granting of a security interest (and perfection thereof) in collateral, and the preparation of guarantees, mortgages, other definitive financing documents or other certificates or documents as promptly as may reasonably practicablebe requested by Buyer, information relating including obtaining releases of existing liens; provided that any granting of security interests (and perfection thereof) in collateral, obligations related to any guarantees, mortgages, other definitive financing documents or other certificates or documents and releases of liens contained in all such agreements and documents shall be, in each case, subject to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion occurrence of the Closing, (e) cooperating in satisfying the conditions precedent set forth in the Debt Financing Commitment Letter to the extent satisfaction of any such condition is within the control of Seller, (f) providing information regarding the “Financing Sources”Business, the Purchased Assets and the Assumed Obligations as may be reasonably requested by the Buyer to assist Buyer in preparing materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses (registered or otherwise) and similar documents reasonably and customarily used to complete the Debt Financing, (including information g) using commercially reasonable efforts to be used assist Buyer in the preparation of a customary pro forma financial statements; provided, that neither the Seller or its Representatives shall be required to provide any such assistance with respect to financial information package regarding or statements relating to (A) the business, operations, financial condition, projections and prospects determination of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion proposed aggregate amount of the Debt Financing, the interest rates thereunder or the fees and expenses relating thereto; (cB) assist in the obtaining determination of customary payoff letters and instruments of discharge any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter incorporated into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses information used in connection with the Debt Financing Financing; or (ivC) any adjustments that are not directly related to the acquisition of the Purchased Assets; provided further that (x) such assistance shall be limited solely with respect to information and data derived from the Seller’s historical books and records and (y) neither Seller nor its Representatives shall be required to take certify or attest to any action in his/her capacity as a director of the Company such pro forma financial statements or any of its Subsidiaries with respect other forecasted information; and (h) to the Debt Financing. Parent shall promptly, upon request extent required by the CompanyFinancing Sources, reimburse providing customary authorization letters authorizing the Company for all reasonable distribution of information to prospective Financing Sources regarding the Business, subject to customary terms and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financingconditions.
Appears in 1 contract
Samples: Asset Purchase Agreement (Centerpoint Energy Resources Corp)
Financing Cooperation. Upon Prior to the request of ParentEffective Time, the Company shall, and shall cause each of its Subsidiaries to, use its commercially reasonable best efforts to provide provide, upon reasonable cooperation in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall include, to the extent reasonably requested request by Parent, commercially such cooperation as is necessary and customary to assist Parent and its affiliates in the preparation and consummation of a potential issuance of equity, unsecured debt securities or unsecured syndicated bank debt, in each case, for the purpose of financing the Merger (the “Financing,” and any banks mandated by Parent or its affiliates for purposes of such Financing, the “Lenders”) including by using reasonable best efforts to: (a) make available provide to prospective lenders, on a customary Parent or any of its designated Affiliates and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, Lenders as promptly as reasonably practicable, practicable after their written request therefor all customary historical financial and other information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary required to be made available for financings similar to purposes of the Debt arrangement or consummation of the Financing; (b) to the extent reasonably if requested by Parent and/or in writing, assist Parent or any of its designated Affiliates in the Financing Sources to assist in preparation of customary prospectuses and/or offering or information documents, private placement memoranda and similar marketing documents to be used for and ratings agency presentation materials (together the completion “Marketing Documents”) required in connection with the consummation of the Debt Financing, ; and (c) assist if requested by Parent in writing, cooperate with the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow advisors retained by Parent or its Affiliates for the payoff, discharge and termination in full purpose of producing customary pro forma financial information on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its SubsidiariesSubsidiaries under applicable accounting standards and procedures for purposes of inclusion in the Marketing Documents, including with respect to the auditor consents if required in connection with any filings with the SEC. Anything consummation of the Financing; provided, in each case, that notwithstanding the foregoing or anything to the contrary provided herein, nothing in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither 5.15 shall require the Company nor or any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall Subsidiaries to (i) be required execute prior to pay the Closing any commitment definitive financing documents, including any credit or other similar feeagreements, pledge or security documents, or other certificates, legal opinions or documents in connection with the Financing, (ii) enter into take any definitive agreement or have action that would reasonably be expected to cause any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related condition to the Debt FinancingClosing set forth in this Agreement to fail to be satisfied, (iii) unless promptly reimbursed by Parenttake any action that would reasonably be expected to cause any violation, be required breach or default (with or without notice, lapse of time, or both) of this Agreement or any contract to incur which the Company or any other expenses in connection with the Debt Financing or of its Subsidiaries is a party, (iv) be required to take any action in his/her capacity as a director that would conflict with the organizational documents of the Company or any of its Subsidiaries with respect or any Laws, (v) take any action that would cause any director, officer, employee or stockholder of the Company or any of its Subsidiaries to incur any personal liability, (vi) provide access to or disclose information in a way that the Company or any of its Subsidiaries determines would jeopardize any attorney-client or other privilege of the Company or any of its Subsidiaries, (vii) take any corporate actions prior to the Debt Closing to permit the consummation of, or otherwise in connection with, the Financing, (viii) prepare any financial statements or information that are not available to the Company and prepared in the ordinary course of its financial reporting practice, (ix) pay any fees, reimburse any expenses or otherwise incur any liability or give any indemnities prior to the Effective Time, or (x) take any action to the extent it would unreasonably disrupt the conduct of the Company’s or any of its Subsidiaries’ respective businesses. Parent shall promptlyindemnify, upon request defend and hold harmless the Company and its Subsidiaries from and against any and all damages, expenses, liabilities and costs incurred in connection with the Financing or any cooperation or information provided in connection therewith or any action taken by the Company, Company or any of its Subsidiaries pursuant to this Section 5.15. Parent shall promptly reimburse the Company for all reasonable and documented out of out-of-pocket costs and expenses (including reasonable attorneys’ fees and ratings agencies’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement cooperation described in this Section 5.15. The Company hereby releases Parent from any restrictions under the Confidentiality Agreement regarding contact with potential Lenders and hereby agrees that potential Lenders are “Representatives” of Parent under the Debt Financing and Confidentiality Agreement; provided, that, in no event shall Parent, Merger Sub or any of their affiliates be permitted to disclose to any potential Lender or any other person any information used in connection therewith (other than information provided by about the Company or any of its Subsidiaries) and all other actions taken Subsidiaries if such disclosure would, if disclosed by the Company (i) violate any Law or the rules of any stock exchange absent a public disclosure by the Company or (ii) violate any Contract. Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 6.3(b), as it applies to the Company, its Subsidiaries and their respective Representatives pursuant to ’s obligations under this Section 5.13. Parent and Merger Sub 5.15, shall keep be deemed satisfied unless the Company informed on a reasonably current basis has willfully breached its obligations under this Section 5.15, and such willful breach has been the principal cause of the status of its efforts to arrange and consummate any Debt FinancingFinancing not being obtained by the End Date.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Varian Medical Systems Inc)
Financing Cooperation. Upon Prior to the request of ParentInitial Closing, the Company Seller shall use Reasonable Efforts, and shall use Reasonable Efforts to cause its commercially reasonable efforts officers, management employees and (at the Purchaser’s cost) advisors (including legal and accounting) to provide reasonable the Purchaser with such cooperation and assistance as the Purchaser may reasonably request in connection with Parentreasonable due diligence access to the Business in connection with the financing of the Purchase Price and the Purchaser’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities working capital requirements for the transactions contemplated under this Agreement (the “Debt Financing”); provided that , in order to allow the Purchaser and DragonWave to comply with its obligations under applicable Laws or regulations. The Seller shall not be required to prepare any additional financial information or reporting for these purposes and the Seller does not give any warranty or representation in respect of any management reporting. For clarity, such cooperation does and assistance shall be limited to (i) participating in a reasonable number of meetings (but not unreasonably interfere including meetings and due diligence sessions with prospective lenders unless the Seller agrees to such meetings); (ii) the provision of historical unaudited financial statements of the Business; and (iii) using Reasonable Efforts to procure cooperation of the auditors of the Seller, at the Purchaser’s cost, to assist with the ongoing operations syndication of the Company senior bank credit facilities of the Purchaser or any Affiliate of the Purchaser and its Subsidiariesany financing. Such commercially reasonable efforts The Purchaser acknowledges that nothing in this Section 5.12 shall includein any way limit the Purchaser’s obligations under this Agreement in the event of any failure to obtain the Financing for whatever reason. Further, in no event will the Seller be liable to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information Purchaser or any other Person for any matter relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoffincluding any representation, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilitieswarranty, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay covenant, agreement, undertaking or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time promise made in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing.
Appears in 1 contract
Financing Cooperation. Upon (a) Prior to the request earlier of Parentthe Closing and the termination of this Agreement, the Company shall and shall cause the applicable Company Subsidiaries to, at Parent’s sole cost and expense, use its commercially reasonable efforts to cause the appropriate officers and employees of the Company and the applicable Company Subsidiaries to provide reasonable such cooperation as is necessary, customary and reasonably requested by Parent solely in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“obtain the Debt Financing”); , if any (provided that (x) none of the Company, the Company Subsidiaries or any of their respective officers or employees shall be obligated to cooperate with a “high-yield” bond financing, and (y) such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its or the Company Subsidiaries). Such commercially reasonable efforts shall include, to the extent reasonably requested cooperation by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiariesthe Company Subsidiaries may include, at the reasonable request of Parent, (bi) providecausing appropriate senior officers to participate in a reasonable number of meetings and due diligence sessions with providers or potential providers of the Debt Financing (which shall be limited to teleconference or virtual meeting platforms) during normal business hours and at mutually agreed times upon reasonable advance notice, as promptly as (ii) reasonably practicableassisting Parent in the preparation of customary marketing materials required in connection with obtaining the Debt Financing, in each case, solely with respect to information relating to the Company (to the extent related to its business) and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company Subsidiaries and its Subsidiaries customary for financings similar to the Debt Financing, (iii) provide reasonable and customary assistance to assist Parent in producing pro forma financial statements; provided, that it is understood that the Company and the Company Subsidiaries shall not be (A) responsible for preparing such pro forma financial information or (B) required to provide any information or assistance relating to (x) the proposed debt and equity capitalization that is required for such pro forma financial information or assumed interest rates and fees and expenses related to such debt and equity capitalization, (y) any post-Closing or pro forma cost savings, synergies, capitalization ownership or other pro forma adjustments or (z) any information related to Parent or any of its Subsidiaries or any adjustments that are not directly related to the extent acquisition of the Company, (iv) providing reasonably promptly to Parent customary and readily available financial information with respect to the Company and the Company Subsidiaries prepared by the Company or the Company Subsidiaries in the ordinary course of business without undue burden or expense as is reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used and is customarily required for the completion of debt financings similar to the Debt Financing, (cv) assist executing and delivering customary authorization letters (provided that such customary authorization letters, or the bank information memoranda in which such letters are included, shall include language that exculpates the obtaining of customary payoff letters Company, the Company Subsidiaries and instruments of discharge to be delivered at Closing to allow for their respective representatives and Affiliates from any liability in connection with the payoff, discharge and termination in full on unauthorized use by the Closing Date recipients thereof of the Existing Credit Facilities information set forth in any such bank information memoranda or similar memoranda or report distributed in connection therewith) and releasing Liens other reasonable and customary closing certificates (including a solvency certificate) and other definitive financing documentation required in connection with the pledges of collateral securing such Existing Credit FacilitiesDebt Financing, in each case (other than with respect to take effect at such authorization letters), subject to the Effective Time occurrence of the Closing and limited, in the case of execution and delivery (it being understood that other than with respect to such authorization letters), solely to officers continuing with the Company shall have no obligation to pay or discharge any such indebtedness and the Company Subsidiaries after the Closing, (vi) furnishing at least three (3) Business Days prior to the Effective TimeClosing information and documentation related to the Company and the Company Subsidiaries reasonably requested in writing by the financing sources providing the Debt Financing at least ten (10) Business Days prior to the Closing Date as may be required under applicable “know your customer” Laws and anti-money laundering rules and regulations, including the USA PATRIOT Act, (vii) reasonably and customarily assist in the preparation of, and executing and delivering at Closing (limited, in the case of execution and delivery, solely to officers continuing with the Surviving Corporation after the Closing), definitive agreements (dincluding schedules thereto), including guarantee and collateral documents and instruments as may be reasonably requested by Parent, customary certificates (including perfection certificates) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time and other customary documents and instruments as may be reasonably requested by Parent in writing, in each case, as may be required in connection with such financingthe Debt Financing; provided, that the effectiveness of any documentation executed by the Company or any of the Company Subsidiaries shall be conditional and subject to the occurrence of the Closing and become effective no earlier than the Closing; (eviii) assist reasonably and customarily facilitate the pledging of collateral of the Company and the Company Subsidiaries effective no earlier than the Closing and conditional and subject to the occurrence of the Closing, including the use of reasonable best efforts to provide to Parent in obtaining customary legal opinions original copies of all certificates representing the equity interests of the Company and the Company Subsidiaries required to be delivered in connection with such financing and (f) assist Parent the Debt Financing to the extent in obtaining customary comfort letters and consents of the independent accountants possession of the Company and its or the Company Subsidiaries, including with respect and (ix) delivering notices of prepayment for the repayment in full of the Company Credit Agreement Payoff Amount to the auditor consents extent required under the terms of the Company Credit Agreement (which notices may be conditioned on the occurrence of the Closing) or obtain a waiver thereof in connection with any filings with the SECCompany Credit Agreement Payoff Letter. Anything Notwithstanding anything in this Section 5.13 Agreement to the contrary notwithstandingcontrary, until none of the Effective Time occursCompany, neither the Company nor Subsidiaries or any officer, employee or representative of any of its Subsidiaries, nor any of their respective officers or directors, as the case may beforegoing, shall (i) be required to (A) provide or prepare, and Parent shall be solely responsible for, the preparation of pro forma financial information, including pro forma costs savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro forma financing information, (B) pay any commitment or other similar fee, (iiC) enter into provide Regulation S-X compliant financial statements or any definitive agreement financial data other than specified in clause (iii) above, (D) approve any document or have other matter related to the Debt Financing or incur or reimburse any costs or expenses or incur any other liability or obligation of any obligation under kind or give any certificate, document, instrument, credit agreement or any related document or any other agreement or document related indemnities prior to the Closing in connection with the Debt Financing, (iiiE) unless promptly reimbursed by Parententer into, be required to incur approve or perform any other expenses agreement or commitment in connection with the Debt Financing or modify any agreement or commitment which would be effective prior to the Closing or provide any certification which would be effective prior to the Closing (ivexcluding any customary authorization letters described in Section 6.10(a)(iv)), (F) be required provide any legal opinion or reliance letters or any certificate, comfort letter or opinion of any of its representatives, (G) provide access to or disclose any information to Parent or its representatives to the extent such disclosure could jeopardize the attorney-client privilege, attorney work product protections or similar protections or violate any applicable Law or contract, (H) take any action that could (I) cause any representation or warranty in his/her capacity as a director this Agreement to be breached or cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement, (II) result in any director, officer, employee or other representative of the Company or any of the Company Subsidiaries incurring any personal liability, (III) conflict with the Company Charter, the Company Bylaws or the governing or organizational documents of any Company Subsidiary or any Law, (IV) result in the contravention of, or that could reasonably be expected to result in a violation or breach of, or a default under, any contract, (V) prepare separate financial statements for the Company or any Company Subsidiaries or change any fiscal period, or (VI) adopt any resolutions, execute any consents or otherwise take any corporate or similar action prior to the Closing. The Company hereby consents to the use of the logos of the Company and its Subsidiaries subsidiaries by Parent in connection with respect to the Debt Financing. ; provided, however, that Parent shall promptlyensure that such logos are used solely in a manner that is not intended, upon request by or that is not reasonably likely, to harm or disparage the Company or the Company’s reputation or goodwill. The Company and each of its Subsidiaries will be deemed to be in compliance with this Section 6.10(a), reimburse the Company for all reasonable and documented out neither Parent nor any of pocket costs (including reasonable attorneys’ fees) incurred by its Affiliates shall allege that the Company or any of its the Company Subsidiaries is or their respective Representatives has not been in connection compliance with their respective obligations pursuant to, and in accordance with, this Section 5.136.10(a), and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of unless the Debt Financing and any information used in connection therewith (other than information provided if any) has not been obtained solely as a result of a deliberate action or omission taken or omitted to be taken by the Company or any in material breach of its Subsidiariesobligations under Section 6.10(a) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep with Knowledge of the Company informed on a that such action or omission would, or would reasonably current basis of the status be expected to, cause such material breach of its efforts to arrange and consummate any Debt Financingobligations under Section 6.10(a).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Bottomline Technologies Inc)
Financing Cooperation. Upon (a) From and after the request date of Parentthis Agreement until the earlier of the Closing or the termination of this Agreement, Seller shall, and shall cause each of the Company shall Acquired Companies to, use its commercially reasonable efforts to provide reasonable cooperation and assistance that is customary or necessary, and as reasonably requested by Buyer (with reasonable prior notice), in connection with Parent’s efforts the arrangement of any debt financing (including, but not limited to arrange and consummate any amendment to"asset-based loan financing") (any such debt financing, or replacement or supplement of, Parent’s credit facilities (“the "Debt Financing”); provided that such cooperation does not unreasonably interfere ") to be incurred by Buyer in connection with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall includetransactions contemplated hereby, to the extent reasonably requested by Parent, including using commercially reasonable efforts to: (aA) make furnishing Buyer with available financial information and statements with respect to the Acquired Companies as may reasonably be required by Buyer and customary for financing transactions, (B) furnishing Buyer with all documentation and other information required by bank regulatory authorities under applicable "know-your-customer" and anti-money laundering rules and regulations, including the Patriot Act, (C) upon reasonable prior notice and in reasonably convenient locations (or via telephonic meeting), making senior management of the Acquired Companies available to prospective participate in a reasonable and limited number of meetings and due diligence sessions with proposed lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel (D) causing officers of the Company and its SubsidiariesAcquired Companies who have been identified by Buyer in writing to Seller as individuals who will be officers after the Closing Date to take reasonable corporate actions, (b) provide, as promptly as reasonably practicable, information relating subject to the Company and its Subsidiaries occurrence of the Closing, necessary to any financing institutions contemplated to arrange and/or provide all or any portion permit the consummation of the Debt Financing (including executing and delivering at Closing any pledge and security documents, other definitive financing documents, payoff letters, and officer's, solvency, insurance and other certificates and documents as reasonably requested by Buyer) and (E) cooperating with Buyer in customary actions in connection with "asset based" loans, including appraisals, field exams, inspections or other similar actions reasonably requested by Buyer; provided, however, that (i) such requested cooperation shall not unreasonably interfere with the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects business of the Company Acquired Companies, or provide any information the disclosure of which is prohibited or restricted by Law, (ii) none of the Seller, the Acquired Companies or any of their Affiliates or any Representatives of the foregoing shall be required to take any action that (A) would subject such Person to any actual or, (B) be reasonably likely to subject such person to any potential Liability, to bear any out of pocket cost or expense or to pay any commitment or similar fee or incur any other liability or provide or agree to provide any indemnity in connection with the arrangement of any Debt Financing or their performance of their respective obligations under this Section 6.17 or any information utilized in connection therewith and its Subsidiaries customary and their respective Representatives for financings similar to any such fees or liabilities and Buyer and its Affiliates will indemnify and hold harmless Seller, the Debt Financing) Acquired Companies, its and their Affiliates and its and their respective Representatives for any such fees or Liabilities and the performance of their respective obligations under this Section 6.17 and any information utilized in connection therewith (except to the extent reasonably requested by Parent and/or Seller has acted in bad faith or committed a willful and intentional breach with respect to its obligations under this Section 6.17), (iii) no Acquired Company nor its officers, managers, directors or employees shall be required to execute any solvency certificate or authorization letter in connection with the Debt Financing Sources that would be effective prior to assist the Closing, (iv) persons who are on the board of directors/managers or the board of directors/managers of each Acquired Company solely prior to the Closing in preparation of customary offering their capacity as such shall not be required to pass resolutions or information documents consents to be used for approve or authorize the completion execution of the Debt Financing, (cv) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation of any Acquired Company or any of its representatives undertaken pursuant to pay the foregoing shall be effective until the Closing, (vi) nothing contained in this Section 6.17(a) or discharge otherwise shall require any such indebtedness Acquired Company, prior to the Effective Time)Closing, (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including an issuer or other obligor with respect to the auditor consents in connection with any filings with Debt Financing and (vii) neither Seller nor the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, Acquired Companies nor any of their respective officers officers, managers, directors or directors, as the case may be, employees shall be obligated to seek consents from any third parties (iincluding lessors) be required to pay any commitment facilitate or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to permit the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Natural Resource Partners Lp)
Financing Cooperation. Upon (a) Each Seller shall, and shall cause the request of Parent, the Company shall Acquired Companies to use its commercially reasonable efforts to provide to Buyer reasonable and customary cooperation requested by Buyer in connection with Parent’s efforts obtaining debt financing in connection with the payment of the Cash Purchase Price and the consummation of the other transactions pursuant to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities this Agreement (the “Debt Financing”); provided that such . The foregoing cooperation does not unreasonably interfere with by each Seller and the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts Acquired Companies shall include, to at the extent reasonably requested by Parentreasonable request of Buyer, using commercially reasonable and customarily required efforts to: in respect of (ai) make available to prospective lenders, on a customary assisting Buyer and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used Sources in the preparation of a customary information package regarding any prospectus, offering memorandum, ratings agency presentation or marketing material and similar reasonably and customarily required documents in connection with debt financings of this type that Buyer may provide or be required to provide to any Debt Financing Source (the business“Offering Documentation”), operationsincluding, financial condition, projections and prospects prior to the beginning of the Company and its Subsidiaries customary applicable marketing period for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of executing and delivering customary payoff representation letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financingbank information memoranda, (e) assist Parent in obtaining customary legal opinions reviewing and commenting on any draft of a business description and “Management’s Discussion and Analysis” of the Acquired Companies’ financial statements to be delivered included in connection the Offering Documentation, furnishing customary financial information for the preparation of an unaudited pro forma consolidated balance sheet and related unaudited pro forma consolidated statements of income and cash flows by (or on behalf of) Buyer to give effect to the transactions contemplated hereby, and causing each Acquired Company’s independent auditors, if any, to provide, consistent with customary practice, reasonable assistance in the preparation of such financing unaudited pro forma financial statements by Buyer and (f) assist Parent in obtaining to deliver customary comfort letters and consents any required consent for inclusion of financial statements and other financial information in any Offering Documentation; provided that (A) each Seller’s and the Acquired Companies’ obligation to provide information for such materials shall be limited to information about the Acquired Companies and (B) neither Seller and none of the independent accountants Acquired Companies shall have any obligation to provide any financial or other information that is not reasonably available to Sellers or the Acquired Companies; (ii) cooperating with marketing efforts of the Company and its SubsidiariesDebt Financing Sources, including (iii) cooperating with respect to the auditor consents Buyer’s legal counsel in connection with any filings with legal opinions provided that in no event shall either Seller or the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) Acquired Companies be required to pay any commitment deliver or other similar feeobtain opinions of internal or external counsel, (iiiv) enter into providing prompt written notice (in reasonable detail) upon knowledge of any facts that would or would likely require the restatement of any financial information or financial statements provided by or on behalf of the Acquired Companies for such financial statements to comply with GAAP or HKFRS, as applicable, (v) cooperating with Buyer in its procuring of definitive agreement financing documents, including providing information pertinent to the Acquired Companies and in the possession of either Seller or have any liability the Acquired Companies that is reasonably necessary for such definitive financing documents or any the performance by Buyer thereunder and facilitating the pledging of collateral, including cooperating in connection with the payoff of existing indebtedness and the release of related Encumbrances and termination of other security interests (provided that no obligation of the Acquired Companies under any certificate, document, instrument, credit agreement or any related such document or any agreement and no pledge shall be effective until the Closing), (vi) assisting Buyer in obtaining waivers, consents, estoppels and approvals from other agreement or document related parties to material leases and other material Contracts relating to the Acquired Companies with respect to the Debt Financing, (iiivii) unless promptly reimbursed taking all corporate, limited liability company or other actions, subject to the occurrence of the Closing, that are necessary or customary to permit the consummation of the Debt Financing, and (viii) providing at least five Business Days prior to the Closing all documentation and other information as is required by Parentapplicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act. Subject to Buyer’s indemnification obligations under Article VI, be required each Seller (on its behalf and on behalf of each of the Acquired Companies) hereby consents to incur the use of all logos of such Seller and any other expenses of the Acquired Companies in connection with the Debt Financing initial syndication or (iv) be required to take any action in his/her capacity as a director marketing of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly; provided, upon request by that such logos are used solely in a manner that is customary for such purposes and not intended to or reasonably likely to harm or disparage either Seller or the Company, reimburse Acquired Companies or the Company for all reasonable and documented out reputation or goodwill of pocket costs (including reasonable attorneys’ fees) incurred by either Seller or the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt FinancingAcquired Companies.
Appears in 1 contract
Financing Cooperation. Upon (a) During the request period from the date of Parentthis Agreement through the earlier of the Closing Date or the date of termination of this Agreement, the Company shall use its commercially reasonable best efforts to provide provide, and shall cause its Subsidiaries and their respective Representatives to use reasonable best efforts to cause their respective Representatives to provide, in each case at Parent’s sole cost and expense, such customary cooperation as may be reasonably requested in writing (which, for purposes of this Section 6.11 may be through email) by Parent in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities the arrangement of the debt financing for the transactions contemplated by this Agreement (the “Debt Financing”); provided that , including using reasonable best efforts to: (i) furnish as promptly as practicable pertinent and customary information (and supplementing such cooperation does information to the extent any such information contains any untrue statement of a material fact or omits to state a material fact necessary to make such information not unreasonably interfere with materially misleading in light of the ongoing operations of circumstances under which such statements were made, when considered as a whole (after giving effect to all supplements and updates thereto through the date furnished)) regarding the Company and its Subsidiaries. Such commercially Subsidiaries as may be reasonably requested by Parent in connection with the Debt Financing and customarily required for the completion of similar financings; (ii) assist in preparation for and upon reasonable notice and at reasonable times and locations, participate in a reasonable number of meetings, presentations and road shows with arrangers or agents, prospective lenders and other investors and sessions with rating agencies and accountants, due diligence sessions and drafting sessions (in each case which may be telephonic or virtual meetings or sessions, as circumstances require) and otherwise cooperate with the marketing and due diligence efforts for any of the Debt Financing; (iii) provide Parent and the Debt Financing Sources, at least four (4) Business Days prior to the Closing Date, with all documentation and other information with respect to the Company and its Subsidiaries as shall includehave been reasonably requested in writing by Parent or any Debt Financing Source at least eight (8) Business Days prior to the Closing Date that is required in connection with the Debt Financing by U.S. regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the USA Patriot Act of 2001, and the requirements of 31 C.F.R. §1010.230; (iv) execute and deliver any guarantee, pledge and security documents, other definitive financing documents (including, to the extent regarding the Company or its Subsidiaries, the schedules thereto), or other certificates or documents as may be reasonably requested by Parent, commercially including the use of reasonable best efforts to: to provide original copies of all certificated securities (awith transfer powers executed in blank) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel the extent in the possession of the Company and or its Subsidiaries, (bv) provide, furnish Parent as promptly as reasonably practicablepracticable the Required Financial Information, (vi) provide reasonable and customary assistance to Parent and the Debt Financing Source (A) in obtaining any corporate credit and family ratings from any ratings agencies to the extent required in connection with the Debt Financing and (B) in the preparation of customary offering documents, lender presentations, private placement memoranda, bank information memoranda, syndication memoranda, ratings agency presentations (including executing customary authorization and representation letters authorizing the distribution of information relating to the Company and its Subsidiaries to prospective lenders or investors and containing representations with respect to the presence of or absence of material non-public information relating to the Company and its Subsidiaries and the accuracy of the information relating to the Company and its Subsidiaries contained therein, provided, that when furnished or considered as a whole, such materials are or will be, complete and correct in all material respects (after giving effect to any financing institutions contemplated supplements thereto) and will not, when furnished, contain any untrue statement of a material fact or omit to arrange and/or state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made, when considered as a whole (after giving effect to all supplements and updates thereto through the date furnished)) and other customary marketing material for the Debt Financing; (vii) provide all reasonable and customary assistance to assist Parent in producing any pro forma financial statements and data regarding the Company and its Subsidiaries to the extent required by the Definitive Financing Agreements; provided that it is understood that the Company and its Subsidiaries shall not be (A) responsible for preparing such pro forma financial information or (B) required to provide any information or assistance relating to (x) the proposed debt and equity capitalization that is required for such pro forma financial information or assumed interest rates and fees and expenses related to such debt and equity capitalization, (y) any post-Closing or pro forma cost savings, synergies, capitalization ownership or other pro forma adjustments or (z) any information related to Parent or any portion of its Subsidiaries or any adjustments that are not directly related to the acquisition of the Company, (viii) assist in the preparation of, and execution and delivering at Closing, definitive agreements with respect to the Debt Financing (the “Definitive Financing SourcesAgreements”) (including information to schedules, annexes and exhibits thereto), including guarantee and collateral documents and instruments as may be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of Parent, customary offering or information closing certificates, a customary solvency certificate, perfection certificates and other customary documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to as may be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood reasonable requested by Parent; provided that the Company shall have no obligation to pay or discharge effectiveness of any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred documentation executed by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant toshall be subject to the occurrence of the Closing, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection (ix) cooperate with the arrangement Debt Financing Sources’ due diligence, to the extent customary and reasonable and (x) taking reasonable corporate actions, subject to and only effective upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing and Financing. Notwithstanding anything to the contrary in this Section 6.11(a), nothing will require the Company to provide (or be deemed to require the Company to prepare) any information used in connection therewith (1) pro forma financial statements (other than the assistance provided for in clause (vii) above); (2) information regarding any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other post-Closing pro forma adjustments; (3) description of all or any portion of the Debt Financing, including any “description of notes” or any information customarily provided by a lead arranger, underwriter or initial purchaser in a customary information memorandum or offering memorandum for a secured bank financing or high yield debt securities, as applicable, including sections customarily drafted by a lead arranger or an initial purchaser or underwriter, such as those regarding confidentiality, timelines, syndication process, limitations of liability and plan of distribution; (4) risk factors relating to all or any component of the Debt Financing; (5) other information required by Rules 3-10 or 3-16 of Regulation S-X under the Securities Act, any Compensation Discussion and Analysis or other information required by Item 402 of Regulation S-K under the Securities Act or any other information customarily excluded from an offering memorandum for private placements of non-convertible high-yield debt securities under Rule 144A promulgated under the Securities Act; (6) any financial statements or financial information not readily available or prepared in the ordinary course of business of the Company at the time requested by Parent; or (7) any of information with respect to any Person other than the Company and its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Nextgen Healthcare, Inc.)
Financing Cooperation. Upon (a) During the request period from the date of Parentthis Agreement to the earlier of the Effective Time and the valid termination of this Agreement in accordance with its terms, the Company and the Company Subsidiaries shall, and the Company shall use its commercially reasonable best efforts to cause its and their Representatives to, provide reasonable to Parent and Sub all cooperation that is reasonably requested by Parent and that is customary in connection with Parent’s efforts the arrangement of debt and equity financings (including without limitation, any portion of the contemplated Financing) in acquisition transactions (including, without limitation, any post Effective Time refinancing thereof which may be commenced and/or undertaken by Parent and Sub during the period from the date of this Agreement to arrange the earlier of the Effective Time and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”the valid termination of this Agreement in accordance with its terms); provided provided, however, that no such requested cooperation does not may unreasonably interfere with the ongoing operations of the Company and its the Company Subsidiaries. Such commercially reasonable efforts cooperation shall include, without limitation, (i) furnishing Parent, Sub and their Financing Sources as promptly as practicable with financial and other pertinent information regarding the Company and the Company Subsidiaries as may be reasonably requested in writing by Parent and identifying any portion of such information that constitutes material non-public information, (ii) in each case, upon reasonable notice and in reasonably convenient locations, making senior management of the Company available to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with prospective financing sources, investors and rating agencies in connection with the extent Financing, (iii) assisting with the preparation of customary materials for rating agency presentations (and assisting in the obtaining of corporate, credit and facility ratings from ratings agencies), offering documents, private placement memoranda, bank information memoranda, prospectuses and all other material to be used in connection with the Financing (including customary authorization and management representation letters) and all documentation and other information required in connection with applicable “know your customer” and anti-money laundering rules and regulations, including U.S.A. Patriot Act of 2001, (iv) using reasonable best efforts to obtain accountant’s comfort letters as reasonably requested by Parent, commercially reasonable efforts to: (av) make taking all corporate actions, including filing for any required consents or approvals, subject to and only effective upon the occurrence of the Effective Time, required to permit the consummation of the Financing and to permit the proceeds thereof to be made available to prospective lendersthe Surviving Corporation immediately after the Effective Time, on a customary (vi) providing, as soon as prepared and reasonable basis and upon reasonable noticemade available to the Company management team, appropriate personnel unaudited consolidated monthly financial statements of the Company (excluding footnotes) consisting of a balance sheet, income statement and its statement of cash flows, (vii) filing a Quarterly Report on Form 10-Q within forty-five (45) calendar days after the end of each fiscal quarter end, which shall comply as to form in all material respects with the applicable requirements of the Exchange Act and shall contain the Company’s unaudited financial statements, (viii) permitting officers of the Company who will be officers of the Surviving Corporation after the Effective Time to execute and deliver any pledge and security documents, other definitive financing documents or other certificates or documents (but in each case, not effective prior to the Effective Time) as may be reasonably requested by Parent (including a certificate of the chief executive officer or chief financial officer of the Company with respect to solvency matters and using reasonable best efforts to obtain consents of accountants to use their reports in any materials relating to the Debt Financing) and otherwise reasonably facilitating the pledging of collateral, including without limitation, by taking all necessary action to facilitate the elimination of any Lien on any of the properties or assets of the Company or any of the Company Subsidiaries, other than Permitted Liens, (bix) providepromptly after providing to any agent or lender under the Existing Credit Agreements, providing true and correct copies of any borrowing base certificates, compliance certificates and/or other notices, certificates and documents provided to any agent or lender from time to time under or pursuant to any of the Existing Credit Agreements (and/or under or pursuant to any of the collateral or security Contracts related to any of the Existing Credit Agreements), (x) providing, as promptly soon as reasonably practicableprepared and made available to the Company management team following the completion of each week, weekly sales and gross margin information relating with respect to the Company and its the Company Subsidiaries in the format that such information is currently prepared by the Company and the Company Subsidiaries, (xi) with respect to the Owned Real Property, providing Parent copies of any financing institutions contemplated existing title policies and surveys in the possession or under the direction or control of the Company or any Company Subsidiary, and permitting officers of the Company who will be officers of the Surviving Corporation after the Effective Time to arrange and/or provide execute and deliver usual and customary deeds conveying all or any portion of the Debt Financing Owned Real Property to the purchaser thereof, usual and customary survey affidavits of “no-change” to the title company (with respect to any Owned Real Property with no changes from the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects date of the Company existing survey) and its Subsidiaries reasonable and customary documents for financings similar the issuance of title policies, including owners’ affidavits, transfer tax documents and corporate authority documents, (xii) in connection with the PLCC Portfolio Sale, provide to the Debt Financing) to the extent Parent and Sub all cooperation and information that is reasonably requested by Parent and/or the Financing Sources to assist in preparation of and that is customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents the arrangement of the independent accountants of the Company and its Subsidiariesa private label credit card portfolio sale, including with respect to the auditor consents without limitation, usual and customary compliance information and financial information, and cooperation in making and filing any required notices or filings in connection with any filings with obtaining any required consent or approval of any Governmental Authority in connection therewith and (xiii) otherwise taking reasonable actions within its control to cooperate in satisfying the SEC. Anything conditions precedent set forth in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers Debt Commitment Letter or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or any condition precedent to obtaining the proceeds of the Financing contemplated by any of the Permissive Debt Financings; provided, however, that (ivA) be required to take any action in his/her capacity as a director no obligation of the Company or any of its Subsidiaries with respect to under any certificate, agreement, notice or other document or instrument shall be effective until the Debt Financing. Parent shall promptlyEffective Time, upon request by the Company, reimburse the Company for all reasonable and documented out none of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries shall be required to pay or their respective Representatives incur any liability for any commitment or other similar fee, pay or incur any liability for any expense (other than as provided in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against Agreement) or incur any and all damages, losses, costs, liabilities other obligation or expenses suffered or incurred by any of them liability in connection with the arrangement of Financing prior to the Debt Financing Effective Time and any information used in connection therewith (other than information provided by B) neither the Company nor any Company Subsidiary, nor any of their respective directors or officers shall be required to take any action to authorize or approve the Financing (or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Alternative Debt Financing) prior to the Effective Time.
Appears in 1 contract
Financing Cooperation. Upon Prior to the request of ParentClosing, the Company Partnership Parties shall use its commercially reasonable efforts to provide provide, and shall use commercially reasonable cooperation efforts to cause their respective Representatives and the Partnership Entities and their respective Representatives to provide, assistance with any financing of the Parent Parties or their Affiliates including any debt financing in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities the Merger (“Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall include, to the extent ) as is reasonably requested by Parentthe Parent Parties or their Affiliates. For the avoidance of doubt, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to obtaining any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) such other financing is not and shall not be required a condition to take the Closing. If any action in his/her capacity as a director Debt Financing has not been obtained, the Parent Parties will each continue to be obligated, subject to the satisfaction or waiver of the Company or any of its Subsidiaries with respect conditions set forth in Article VII, to consummate the Debt FinancingMerger. Parent shall promptlyshall, upon request by the CompanyPartnership Parties, their current and future Affiliates, and each of their respective current and future direct and indirect equityholders, members, partners and Representatives (collectively, the “Financing Indemnified Parties”), or any Partnership Entity, reimburse the Company such Financing Indemnified Parties or Partnership Entities, as applicable, for all reasonable and documented out of out-of-pocket costs (and expenses incurred by such Financing Indemnified Parties or Partnership Entities, as applicable, including reasonable attorneysattorney’s fees and accountants’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives , in connection with their respective obligations pursuant to, and in accordance with, cooperation required under or with respect to requests made under this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against 6.4. If any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing commitment has been obtained, the Parent Parties shall use reasonable best efforts to take, or cause to be taken, all actions and any information used in connection therewith (other than information provided by to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives financing pursuant to this Section 5.13. any such commitment, including to enforce the Parent and Merger Sub shall keep Parties’ rights under the Company informed on a reasonably current basis terms of the status of its efforts to arrange and consummate any such Debt Financing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Sisecam Resources LP)
Financing Cooperation. Upon Prior to the request Closing, each Seller shall cause the applicable Acquired Companies of Parent, the Company such Seller and shall use Commercially Reasonable Efforts to cause its commercially reasonable efforts to provide reasonable cooperation in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall include, to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from Representatives, including legal and against any and all damagesaccounting advisors, losses, costs, liabilities or expenses suffered or incurred by any of them to provide Buyer with commercially reasonable cooperation in connection with the arrangement of the Debt Financing as may be reasonably requested by Buyer and that is customary in connection with a financing comparable to the Debt Financing, including using Commercially Reasonable Efforts in: (a) providing relevant information to assist Buyer and the Financing Sources with the preparation of materials for rating agency presentations and lender presentations relating to the Debt Financing (including with respect to presence or absence of material non-public information and the accuracy of the information contained therein); (b) providing and delivering documents in the possession of such Seller or any applicable Acquired Company of such Seller; (c) requesting and making reasonable efforts to obtain from the Operator and provide to Buyer such documents otherwise available to such Seller or applicable Acquired Company pursuant to the terms of the C&O Agreements or the O&M Agreement (provided that the Parties acknowledge and agree that except as otherwise provided under the C&O Agreements and the O&M Agreement, the Operator is under no express obligation to provide any such information); or (d) executing any documents as may be reasonably requested by Buyer and reasonably necessary in connection with the Debt Financing with respect to documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act; and (e) furnishing Buyer and the Financing Sources identified by Buyer as promptly as reasonably practicable with financial, business, and other pertinent information regarding the applicable Acquired Companies of such Seller as may be reasonably requested by Buyer and reasonably necessary in connection with the Debt Financing (including as promptly as practicable but in no event later than sixty (60) days after the end of the applicable quarter, the unaudited balance sheets and related statements of income and cash flows of the applicable Acquired Companies of such Seller for each subsequent fiscal quarter (or year to date period) after June 30, 2019). Each Seller hereby consents to the use of its and the applicable Acquired Companies of such Seller’s logos in connection with the Debt Financing; provided that such logos are used in connection therewith (other than information provided a manner that is not intended to nor reasonably likely to harm or disparage any Seller or any Acquired Company. No Seller shall be required to take any action that would result in any liability or obligation of an applicable Acquired Company of such Seller prior to the Closing, or any further liability or obligation of such Seller. Notwithstanding anything herein to the contrary, Buyer’s failure to obtain the Debt Financing shall not relieve Buyer of its obligation to consummate the transactions contemplated by this Agreement whether or not the Company Debt Financing is available. Buyer shall reimburse each Seller for such Seller’s reasonable, documented out of pocket expenses actually incurred by such Seller in complying with this Section 6.13. In no event shall any Seller, any of the applicable Acquired Companies of such Seller or any of its Subsidiariesor their respective Representatives have any liability to Buyer or any other Person (including any Financing Source) under this Section 6.13 except to the extent of their gross negligence or willful misconduct or Fraud, and all other actions taken by Buyer hereby releases and agrees to defend, indemnify and hold harmless each Seller, the Company, applicable Acquired Companies of such Seller and each of its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent from any and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financingall such liability.
Appears in 1 contract
Financing Cooperation. Upon (a) From the request date of Parentthis Agreement until the Closing (or the earlier termination of this Agreement pursuant to Article 12), the Company shall, and shall cause each of its Subsidiaries to, use its commercially reasonable efforts to provide reasonable customary cooperation as is reasonably requested by Parent and Merger Subsidiary in connection with Parent’s efforts and Merger Subsidiary’s arrangement of debt financing pursuant to arrange that certain commitment letter dated as of the date hereof from the Debt Financing Sources party thereto (including all related exhibits, schedules, annexes, supplements and consummate term sheets thereto, and as amended, supplemented, replaced or otherwise modified from time to time, the “Debt Commitment Letter”) in connection with the transactions contemplated hereby in the amount set forth therein (any amendment tosuch debt financing, or replacement or supplement of, Parent’s credit facilities (the “Parent Debt Financing”); provided that . Subject to the limitations in paragraph (b) below, such cooperation does not unreasonably interfere shall include (i) furnishing Parent and Merger Subsidiary with the ongoing operations Required Information, all of which shall be provided by the Company as promptly as practicable after the date hereof, and its Subsidiaries. Such commercially reasonable efforts shall includeupdating any such Required Information as may be necessary for such Required Information to be remain Compliant, to the extent reasonably requested by Parent, commercially reasonable efforts to: (aii) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, participating in and cause appropriate personnel members of senior management to participate in a reasonable number of lender presentations, meetings, calls, due diligence sessions and sessions with rating agencies in connection with the Parent Debt Financing at reasonable times and locations to be mutually agreed, (iii) providing reasonable assistance to Parent in its preparation of any customary bank information memoranda (including the delivery of customary executed authorization letters with respect to the bank information memoranda executed by a senior officer of the Company), (iv) reasonably cooperating with, and taking all actions reasonably required by, Parent in order to facilitate the termination and payoff of the commitments under the Company’s existing credit facilities and other indebtedness for borrowed money of the Company and its Subsidiariesrequired by the terms of this Agreement, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and letters, lien releases, instruments of termination or discharge to be delivered at Closing in order to allow for the payoff, discharge and termination in full on the Closing Date of such existing debt, and using commercially reasonable efforts to facilitate the obtaining of Company guarantees of Parent Debt Financing and pledging of Company collateral in connection therewith as of Closing, (v) reasonably assisting Parent in the execution and delivery of customary definitive documents and certificates related to the Parent Debt Financing, (vi) providing customary information about the Company and its Subsidiaries as the Company may have, upon reasonable request of Parent, in connection with Parent’s efforts to obtain ratings from rating agencies contemplated by the Debt Commitment Letter, (vii) furnishing, at least three Business Days prior to the Closing, such documentation and information as is reasonably requested in writing by Parent at least ten Business Days prior to the Closing to the extent required for lenders under the Parent Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act and a certificate regarding beneficial ownership required by 31 C.F.R. § 1010.230 and (viii) taking corporate actions reasonably required to permit the consummation of the Existing Credit Facilities Parent Debt Financing and releasing Liens and to permit the pledges of collateral securing such Existing Credit Facilities, in each case proceeds thereof to take effect be made available to the Surviving Company at the Effective Time (it being understood that the Time. The Company shall have no obligation hereby consents to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges customary and reasonable use of collateral to take effect at the Effective Time its and its Subsidiaries’ logos in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing; provided that such logos are used solely in a manner that is not intended, (iii) unless promptly reimbursed by Parentor reasonably likely, be required to incur any other expenses in connection with the Debt Financing harm or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by disparage the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities reputation or expenses suffered or incurred by goodwill of any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financingthem.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ultra Clean Holdings, Inc.)
Financing Cooperation. Upon Prior to the request Closing or termination of Parentthis Agreement, at Buyer’s sole cost and expense, Sellers shall, and shall cause the Acquired Companies and each of the Sellers’, the Company shall Company’s, such Subsidiaries’, and their respective Affiliates’ directors, officers, managers, representatives, auditors, and advisors to, provide reasonable cooperation to Buyer and its Affiliates in the arranging of any debt financing of the Buyer, the Company, or the Company’s Subsidiaries, and to use its their respective commercially reasonable efforts (a) to provide cause appropriate officers and employees of the Acquired Companies (i) to be available on a customary basis to meet with prospective lenders, rating agencies and investors in presentations, meetings, road shows and due diligence sessions, (ii) to assist with the preparation of disclosure documents, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations, projections and similar documents in connection therewith, (iii) furnishing Buyer and its Financing Sources with financial statements and financial and other pertinent information regarding the Acquired Companies as may be reasonably requested by Buyer to consummate the financing, (iv) to execute and deliver any definitive financing documentation, security documents, hedging arrangements, customary certificates, legal opinions (which may be reasoned, if counsel reasonably believes it cannot give the opinion otherwise) or other documents as may be reasonably requested by Buyer in connection with the financing, in each case which will become effective only on or after the Closing, (v) to take such reasonable actions as may be required to facilitate the pledge of collateral to secure the financing (including cooperation in connection with Parent’s efforts the pay‑off of existing Indebtedness and the release of Liens related thereto), (vi) to arrange obtain all waivers, consents and consummate approvals from other parties to contracts and liens to which the Acquired Companies are a party or by which any amendment toof them or their assets or properties are bound or subject, or replacement or supplement of, Parent’s credit facilities and (“Debt Financing”); provided that such cooperation does not unreasonably interfere with vii) to take all other actions necessary to permit the ongoing operations consummation of the Company financing and its Subsidiaries. Such commercially reasonable efforts shall include(b) to cause the independent certified public accountants of the Acquired Companies to provide assistance to Buyer, to the extent reasonably requested by Parent, commercially reasonable efforts to: (a) make available to prospective lendersincluding providing consent, on a customary and reasonable basis and upon reasonable noticebasis, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information to Buyer to use their audit reports relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the businessAcquired Companies and, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation cost of Buyer, to pay or discharge provide any such indebtedness prior necessary “comfort letters” and to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining prepare and deliver other customary legal opinions to be delivered in connection with such financing documents and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses in connection with the Debt Financing or (iv) be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financinginstruments.
Appears in 1 contract
Samples: Membership Interest Purchase and Sale Agreement (Laredo Petroleum, Inc.)
Financing Cooperation. Upon The Financing to be incurred in connection with the request of ParentStock Purchase and the other transactions contemplated hereby by the Buyer shall be subject to the Stockholders’ Representative’s prior consent, such consent not to be unreasonably withheld. Prior to the Closing, the Company shall use its commercially reasonable efforts to provide provide, and shall use commercially reasonable efforts to cause each of its Subsidiaries to provide, and shall use commercially reasonable efforts to cause its Representatives to provide, on a timely basis, all reasonable cooperation requested by the Buyer and that is customary in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities the arrangement of the Financing (“Debt Financing”); provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such Company), including using commercially reasonable efforts shall includeto (i) facilitate the provision of a credit agreement, to guarantees, pledges of collateral and other customary documents in connection with the extent reasonably requested by ParentFinancing (in each case, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel effective as of the Company and its SubsidiariesClosing), (bii) provide, as promptly as reasonably practicable, provide financial and other pertinent information relating to regarding the Company and its Subsidiaries as may be reasonably requested in writing by the Buyer in order to any financing institutions contemplated consummate the Financing, (iii) provide information with respect to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, financial condition, projections properties and prospects assets of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent as may be reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the completion of the Debt FinancingBuyer, (civ) assist participate in the obtaining a reasonable number of customary payoff letters informational and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time), (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financing, (e) assist Parent in obtaining customary legal opinions to be delivered in connection with such financing and (f) assist Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses meetings in connection with the Debt Financing and (v) assist the Buyer and its financing sources in the preparation of all agreements (including review of schedules for completeness), offering documents, an offering memorandum and other marketing materials for the Financing, it being understood and agreed that information and documents provided by the Company may be delivered to agents and lenders under documents in connection with the Financing and their Representatives (subject to customary arrangements for confidentiality that are acceptable to the Company), including consenting to the use of the Company’s and its Subsidiaries’ logos (provided that such logos are used solely in a manner that is not intended to or (iv) be required reasonably likely to take any action in his/her capacity as a director harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing).
Appears in 1 contract
Samples: Stock Purchase Agreement (Global Defense & National Security Systems, Inc.)
Financing Cooperation. Upon (a) During the Interim Period, upon the request of ParentBuyer, the Company Sellers shall, and shall use its commercially reasonable efforts to provide reasonable cooperation cause their Representatives to, cooperate reasonably in connection with Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities the Financing (“Debt Financing”); provided that so long as such requested cooperation does not unreasonably interfere with the ongoing operations conduct of the Company business of the Sellers), including any offering of securities, requested repayment or refinancing of Indebtedness of Buyer and any SEC filing to be made by Buyer, including, as applicable, by: (i) providing Required Information reasonably requested by Buyer or its Subsidiaries. Such commercially reasonable efforts shall include, Financing Sources to the extent reasonably requested in Sellers’ possession, or obtainable by Parent, commercially reasonable efforts to: Sellers; (aii) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries to any financing institutions contemplated to arrange and/or provide all or any portion of the Debt Financing (the “Financing Sources”) (including information to be used assisting at Buyer’s sole expense in the preparation of a customary information package regarding the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries customary for financings similar to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents SEC filings to be used for the completion of the Debt Financingmade by Buyer, (c) assist in the obtaining of customary payoff letters offering memoranda, private placement memoranda, prospectuses, bank confidential information memoranda, rating agency presentations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilitiessimilar documents, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time)case, (d) cooperate with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such financingthe Financing (“Offering Documents”); (iii) (A) using reasonable commercial efforts to cause any accountants retained by Sellers to cooperate with Buyer, (e) assist Parent including by participating in drafting sessions and accounting due diligence sessions, obtaining customary legal opinions to be delivered in connection with such financing the consent of, and (f) assist Parent in obtaining customary comfort letters from, such accountants (including by providing customary management letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect requesting legal letters to the auditor consents obtain such consent) in connection with any filings securities offering by Buyer if reasonably necessary or desirable for Buyer’s use of Sellers’ or its Subsidiaries’ financial statements, (B) using reasonable commercial efforts to cause any independent reservoir engineers retained by Sellers to cooperate with Buyer, including by participating in drafting sessions and reservoir engineer due diligence sessions, obtaining the consent of, and customary comfort letters from, such engineers (including, if necessary, by providing customary management letters and requesting legal letters to obtain such consent) in connection with any securities offering by Buyer if reasonably necessary or desirable for Buyer’s use of Sellers’ or its Subsidiaries’ reserve reports, (C) cooperating with the SEC. Anything in this Section 5.13 to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment Buyer’s or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses relevant independent reservoir engineers in connection with the Debt Financing or (iv) drafting of any customary comfort letters that such independent engineers may be required to take any action in his/her capacity as a director of the Company or any of its Subsidiaries with respect to the Debt Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out of pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives deliver in connection with their respective obligations pursuant to, and in accordance with, this Section 5.13, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and their respective Representatives pursuant to this Section 5.13. Parent and Merger Sub shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange and consummate any Debt Financing.securities offering and
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (PDC Energy, Inc.)
Financing Cooperation. Upon the request of ParentThe Company shall, the Company and shall cause its Subsidiaries to, and shall use its commercially reasonable best efforts to provide reasonable cooperation cause their respective Representatives to, cooperate in connection with the arrangement of the Financing or alternative financing as may be reasonably requested by Parent’s efforts to arrange and consummate any amendment to, or replacement or supplement of, Parent’s credit facilities (“Debt Financing”); provided that such cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Such commercially reasonable efforts shall include, to the extent reasonably requested cooperation by Parent, commercially reasonable efforts to: (a) make available to prospective lenders, on a customary and reasonable basis and upon reasonable notice, appropriate personnel of the Company and its Subsidiaries, (b) provide, as promptly as reasonably practicable, information relating to the Company and its Subsidiaries and their respective Representatives shall include, at the reasonable request of Parent, (a) participating in meetings and presentations with prospective lenders (including making available the Company’s senior management for participation in such meetings), (b) using reasonable best efforts to provide information (including any information necessary to facilitate preparation of projections and the pro forma financial statements required pursuant to the Securities Act (including Article XI of Regulation S-X) in connection with the Merger), documents, authorization letters, opinions and certificates, enter into agreements and take other actions that are customary in connection with the Financing or alternative financing institutions contemplated or necessary or desirable to arrange and/or provide all permit Parent to fulfill conditions or any portion obligations under the definitive documentation for the Financing or the alternative financing, (c) furnishing the report of the Debt Financing (Company’s auditor on the “Financing Sources”) (including information to be used in the preparation of a customary information package regarding the business, operations, most recently available audited consolidated financial condition, projections and prospects statements of the Company and its Subsidiaries customary for financings similar and using its reasonable best efforts to obtain the consent of such auditor to the Debt Financing) to the extent reasonably requested by Parent and/or the Financing Sources to assist use of such report in preparation of customary offering or information documents to be used for the completion of the Debt Financing, (c) assist in the obtaining of customary payoff letters accordance with normal custom and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Existing Credit Facilities and releasing Liens and the pledges of collateral securing such Existing Credit Facilities, in each case to take effect at the Effective Time (it being understood that the Company shall have no obligation to pay or discharge any such indebtedness prior to the Effective Time)practice, (d) cooperate using reasonable best efforts to assist in the preparation of one or more confidential information memoranda and other marketing and syndication materials reasonably requested by Parent; (e) cooperating with respect to matters relating to pledges of collateral to take effect at the Effective Time in connection with such the Financing or the alternative financing, ; (ef) assist assisting Parent in obtaining customary legal opinions to be delivered in connection with such financing and the Financing or the alternative financing; (fg) assist assisting Parent in obtaining customary comfort letters and consents of the independent accountants of the Company and its Subsidiaries, including with respect to the auditor consents in connection with any filings with the SEC; and (h) using reasonable best efforts to assist in procuring any necessary rating agency ratings or approvals. Anything in this Section 5.13 The Company hereby consents to the contrary notwithstanding, until the Effective Time occurs, neither the Company nor any reasonable use of its Subsidiaries, nor any of their respective officers or directors, as the case may be, shall (i) be required to pay any commitment or other similar fee, (ii) enter into any definitive agreement or have any liability or any obligation under any certificate, document, instrument, credit agreement or any related document or any other agreement or document related to the Debt Financing, (iii) unless promptly reimbursed by Parent, be required to incur any other expenses logos in connection with the Debt Financing or (iv) any alternative Financing, provided that such use is disclosed to the Company in writing prior to the time that it is so used, such logos are used in a manner that could not reasonably be required expected to take any action in his/her capacity harm or disparage the Company, its Subsidiaries or their marks and on such other customary terms and conditions as a director of the Company or any of its Subsidiaries with respect to the Debt Financingapplicable Subsidiary shall reasonably impose. Parent shall promptlyshall, promptly upon request by the Companytermination of this Agreement, reimburse the Company for all reasonable and documented out of out-of-pocket expenses and costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with their respective the Company’s or its Affiliates’ obligations pursuant tounder this Section 6.12, and in accordance with, this Section 5.13, and Parent shall indemnify and hold harmless the Company, Company and its Subsidiaries Affiliates and their respective Representatives from and against any and all losses, damages, lossesclaims, costs, liabilities costs or expenses suffered or incurred by any of them in connection with the arrangement of the Debt Financing and or the alternative financing, except to the extent determined by a court of competent jurisdiction in a final proceeding to have arisen from fraud, gross negligence, willful misconduct or intentional misrepresentation of the Company, its Subsidiaries and/or any information used of its Representatives. 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 therewith with the Financing (other than or any alternative financing) not subject to the Effective Time. All material non-public information provided by the Company or any of its Subsidiaries) and all other actions taken by the Company, its Subsidiaries and or any of their respective Representatives pursuant to this Section 5.13. 6.12 shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Merger Sub shall keep be permitted to disclose such information to the Company informed on a reasonably current basis lenders in respect of the status Commitment Letter and other potential sources of its efforts capital, rating agencies and prospective lenders and investors during syndication of the Financing or any alternative Financing subject to arrange the lenders, potential sources of capital, ratings agencies and consummate any Debt Financingprospective 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).
Appears in 1 contract
