Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) 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 (ii) 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 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 deliver in 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 Affiliates’ reputation or goodwill.
Appears in 3 contracts
Samples: Share Purchase Agreement (Revelyst, Inc.), Share Purchase Agreement (Outdoor Products Spinco Inc.), Share Purchase Agreement (Vista Outdoor Inc.)
Financing Cooperation. 8.11.1. Buyer may determine(a) Prior to the Effective Time, the Partnership Entities shall, and shall cause their Subsidiaries to, and shall use their reasonable best efforts to cause their respective Representatives to, provide all customary and reasonable cooperation in its sole discretion, to obtain debt financing to fund any portion connection with the arrangement of the Purchase Price financing contemplated by the Debt Commitment Letter (the “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 as 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 Parent (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the business or operations of the Group CompaniesPartnership Entities and their respective Subsidiaries), including as promptly as reasonably practical, (a) furnishing Buyer participation at reasonable times in a reasonable number of meetings, presentations, roadshows (including customary one-on-one meetings), rating agency and due diligence sessions with the Required Financial Information Financing Sources and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of potential lenders or investors in the Debt Financing, including direct contact between senior management and the other representatives of the Partnership Entities and their respective Subsidiaries, on the one hand, and the actual and potential Financing Sources and potential lenders or investors in the Debt Financing, on the other hand, in each case with reasonable advance notice, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate Parent and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt its Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting Sources in the preparation of (i) customary bank information memoranda, materials for rating agency presentations and lender and investor presentations, offering documentsbusiness projections, offering or private placement memoranda pro forma financial statements, bank books and other similar marketing documents customarily used to arrange debt financing, and due diligence efforts identifying any portion of the information contained therein that would constitute material, non-public information with respect to the Partnership Entities or any of their respective Subsidiaries or any of their respective securities for purposes of foreign, United States federal or state securities laws, (c) (i) furnishing Parent with the Debt Financing Required Information and (ii) using reasonable best efforts to furnish any other information regarding the Retained Companies as may be reasonable requested by Parent that is customary authorization and representation letters, each as required in connection with or necessary for the preparation of a customary confidential information memorandum for financings that are similar to 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 facilitate the Company’s independent registered accounting firm to provide customary assistancegranting of a security interest (and perfection thereof) in collateral, guarantees, mortgages, other definitive financing documents or other certificates or documents as may reasonably be requested by Parent, including (i) providing customary comfort letters (including “negative assurance comfort” obtaining releases of existing Liens; provided, that any obligations and “change period comfort”) releases of Liens contained in connection with any capital markets transaction comprising a part all such agreements and documents shall be subject to the occurrence of the Debt Financing, (ii) providing customary consents to Effective Time and become effective no earlier than immediately following 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 diligenceEffective Time, (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 Parent at least ten (10) Business Days days prior to the Closing Effective Time, furnishing within 5 days prior to the extent Effective Time all documentation and other information required by U.S. regulatory authorities Governmental Authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT U.S.A. Patriot Act of 2001, but in each case, solely as relating to the Partnership Entities and the requirements of 31 C.F.R. §1010.230their respective Subsidiaries, (hf) facilitating and assisting in the preparation and delivery of definitive financing documents as may be reasonably requested by Parent, (g) reasonably cooperating in satisfying the conditions precedent set forth in the Debt Commitment Letter or any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents document relating to the Debt Financing relating to the Group Companiesextent the satisfaction of such condition requires the cooperation of, or is within the control of the Partnership Entities and their respective businesses Subsidiaries, (h) taking all corporate actions, subject to be included in the definitive documents relating occurrence of the Effective Time, as reasonably requested by Parent to permit the consummation of 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 permitting the prospective lenders or investors involved in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver in connection with the Debt Financing, in each case, solely Financing to the extent reasonable and conduct 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 Agreementdue diligence. The Company Partnership hereby consents, on behalf of itself and the Group Companies, consents to the use of the its and its Subsidiaries’ logos of the Group Companies in connection with the Debt Financing; provided provided, that such logos are used solely in a manner that is not intended tointended, nor is reasonably likely to, harm or disparage the Company’s Partnership Entities or any of its Affiliates’ reputation or goodwilltheir respective Subsidiaries.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Targa Resources Corp.), Agreement and Plan of Merger (Atlas Energy, L.P.), Agreement and Plan of Merger (Atlas Pipeline Partners Lp)
Financing Cooperation. 8.11.1. Buyer may determine(a) Prior to the Closing Date, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer Seller shall, promptly after such Debt Financing is obtained (x) provide Seller and shall cause the General Partner and the Company Partnership Entities to, and shall use commercially reasonable efforts to cause their respective Representatives to, provide such reasonable cooperation in connection with written notice that such Debt Financing has been obtained and (y) deliver (any financing by the Acquiror Parties or cause any of their respective Affiliates 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 finance 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 toAgreement, 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion Acquiror Parties. Without limiting the generality of the Debt Financingforegoing, (b) participating in telephonic meetings but subject to Section 6.11(b), Seller shall, and otherwise reasonably assisting with shall cause the preparation of appropriate General Partner and customary materials customary presentationsthe Partnership Entities to, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing shall use commercially reasonable efforts to the extent cause their respective Representatives to, upon reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of request (i) customary bank information memorandafurnish the report of the General Partner’s and the MLP’s auditor on the audited consolidated financial statements of the General Partner and the Partnership Entities and use commercially reasonable efforts to obtain the consent of such auditor to the use of such report, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing including in documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection filed with the Debt FinancingSEC under the Securities Act, authorizing the distribution of information to prospective lenders in accordance with normal custom 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 practice and state securities laws if any Group Company were a public reporting company, (d) using use commercially reasonable best efforts to cause the Company’s independent registered accounting firm such auditor to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) to the underwriters, initial purchasers or placement agents, as applicable, in connection with any capital markets transaction comprising a part of the Debt Financing, such financing; (ii) providing customary consents to the inclusion of their audit report in respect of furnish any additional financial statements of the Company statements, schedules, business or other financial data readily available and the Company Subsidiaries in any offering documents relating to the Debt Financing General Partner and the Partnership Entities reasonably requested by the Acquiror Parties or their respective Representatives as may be reasonably necessary to consummate any such financing; (iii) provide reasonable direct contact between (x) senior management and advisors, including auditors, of the General Partner and the Partnership Entities and (y) the proposed lenders, underwriters, initial purchasers or placement agents, as applicable, and/or the Acquiror Parties’ auditors, as applicable, in connection with, the financing, at reasonable times and upon reasonable advance notice; (iv) make available senior management of the General Partner to provide reasonable assistance 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 Acquiror Parties’ preparation of business projections, financing documents, pro forma financial information, pro forma financial statements and delivery of offer materials; (v) cooperate with the same, in each case, solely to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external Acquiror Parties’ legal counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion opinions that such the Acquiror Parties’ legal counsel may be required to deliver in connection with the Debt Financingsuch financing; (vi) provide customary information, in each casedocuments, solely to the extent reasonable authorization letters, opinions and certificates, enter into customary for financings of such type, and (j) obtaining and providing documents to Buyer agreements (including draft payoff lettersindentures or supplemental indentures) 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 take other actions that are customary in connection with the Debt Financingfinancing and necessary to permit the Acquiror Parties to fulfill conditions or obligations under the financing documents; provided that such agreements entered into shall be conditioned upon, and shall not take effect until, the Closing Date; (vii) assist in the preparation of one or more confidential information memoranda, prospectuses, offering memoranda and other marketing and syndication materials reasonably requested by the Acquiror Parties; (viii) permit the Acquiror Parties’ reasonable use of the MLP’s logos for syndication and underwriting, as applicable, in connection with any such financing (subject to advance review of and consultation with respect to such use); provided that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, to harm or disparage the Company’s General Partner or any of its Affiliates’ the Partnership Entities or the reputation or goodwillgoodwill of the General Partner or any of the Partnership Entities; (ix) participate in a reasonable number of meetings and presentations with prospective lenders and investors, as applicable (including the participation in such meetings of the General Partner’s senior management); and (x) use commercially reasonable efforts to assist in procuring any necessary rating agency ratings or approvals. Neither the General Partner, nor any Partnership Entity shall be required to make any representation or warranty in connection with any financing by the Acquiror Parties or any of their respective Affiliates to finance the transactions contemplated by this Agreement prior to the Closing Date (other than in a customary authorization and representation letter).
Appears in 3 contracts
Samples: Purchase Agreement (USA Compression Holdings, LLC), Purchase Agreement (Energy Transfer Equity, L.P.), Purchase Agreement (Energy Transfer Partners, L.P.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of (a) From the Purchase Price (date hereof until the “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 8.11.2Date, the Company shall use reasonable best efforts toprovide, shall cause the Company Subsidiaries to provide, and shall use reasonable best efforts to cause the Company Subsidiaries its Representatives to provide, to Parent and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer such Acquisition Sub all cooperation reasonably requested by Buyer that is reasonably necessary Parent and Acquisition Sub in arrangingconnection with the consummation, obtaining arrangement, marketing and syndicating syndication of the Debt Financing or any replacement, amended, modified or alternative financing permitted by this Agreement (collectively with the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies“Available Financing”), including as by using its reasonable best efforts (i) promptly as reasonably practicalupon request by Parent, (a) furnishing Buyer with to furnish Parent and Acquisition Sub the Required Financial Information and such other financial information other pertinent information and disclosures regarding the Group Companies Company and the Company Subsidiaries as may be available to Company and customary and necessary to permit the consummation of the Available Financing, (ii) to participate, in each case upon reasonable notice, at agreed times and places, in a reasonable number of meetings (including one-on-one meetings or conference calls) with parties acting as agents or arrangers for, and prospective lenders of, the Available Financing for the Transactions, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies, and reasonably cooperate with the marketing or solicitation efforts of Parent and Acquisition Sub and their financing sources, in each case as reasonably requested by Buyer for Parent and Acquisition Sub and reasonably required in connection with the completion of the Debt Available Financing, (biii) participating in telephonic meetings and otherwise as reasonably assisting requested by Parent, to assist Parent with the preparation of appropriate and customary materials customary for rating agency presentations, due diligence sessions marketing materials, offering memoranda and bank information memoranda (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing respect to presence of absence of material non-public information relating to the extent reasonable Company and customary for financings the Company Subsidiaries and the accuracy of such type, (c) reasonably assisting in the preparation of (i) customary bank information memorandarelating to the Company and the Company Subsidiaries contained therein), lender presentations and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders private placement memoranda, prospectuses 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”) similar documents required in connection with any capital markets transaction comprising a part of the Debt Available Financing, (iiiv) if reasonably requested by Parent or Acquisition Sub in connection with the Available Financing and subject to Parent and Acquisition Sub providing customary consents funds necessary to repay amounts outstanding under the inclusion of their audit report in respect of any financial statements Credit Agreement (and cash collateralizing all letters outstanding thereunder) as of the Company Effective Time, (A) to obtain and provide to Parent a customary payoff letter(subject to and conditioned upon, or to be executed upon, the Company Subsidiaries in any offering documents relating to the Debt Financing and (iiiClosing) reasonable assistance and cooperation to Buyer with respect to any auditor due diligencethe Credit Agreement, and (eB) 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 provide by the Closing Date all such documentation and other information as is reasonably requested required in writing connection with the Available Financing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including regulations and requested from the PATRIOT Act and Company in writing at least five (5) business days prior to the requirements of 31 C.F.R. §1010.230Closing Date, (hv) facilitating and assisting to assist in the preparation and delivery execution of any customary credit agreementsagreements (or amendments thereto), pledge and security documents, guarantees, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or and other customary definitive documents documentation relating to the Debt Financing relating Available Financing, (vi) to facilitate the granting of a security interest (and perfection thereof) in collateral owned by the Company and the Company Subsidiaries; provided, however, that notwithstanding anything to the Group Companies, contrary in this Section 7.14 (including clauses (v) and their respective businesses to be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery (vi) of this clause (a)) no obligation of the sameCompany or any of the Company Subsidiaries under any agreement, certificate, document or instrument (and no security interest in each case, solely to any assets of the extent reasonable and customary for financings Company or any of such type, (ithe Company Subsidiaries) 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 deliver executed in connection with the Debt FinancingAvailable Financing shall be effective until the Closing, and (vii) upon the reasonable request of Parent and Acquisition Sub, to assist Parent and Acquisition Sub in each case, solely to the extent reasonable and obtaining customary accountant’s comfort letters customary for financings of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating similar 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 Available 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 Affiliates’ reputation or goodwill.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (On Semiconductor Corp), Agreement and Plan of Merger (Fairchild Semiconductor International Inc)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “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 The Company shall use reasonable best efforts and shall cause its subsidiaries to, and shall at Parent’s sole expense, 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 all 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt arrangement of the Financing to the extent reasonable and customary (for financings purposes of such typethis Section 6.13, (c) reasonably assisting in the preparation of including (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 any flex applicable to the Debt Financing and (ii) any alternative financing obtained in connection with Section 6.12(c)) as may be reasonably requested by Parent. Such cooperation by the Company shall include, at the reasonable request of Parent, (a) agreeing to enter into such agreements, and to use its reasonable best efforts to deliver such officer’s certificates (including a solvency certificate of the chief financial officer of the Company in the form contemplated by the Financing Commitments), as are customary authorization in financings of such type and representation lettersas are, each in the good faith determination of the persons executing such officer’s certificates, accurate, and agreeing to pledge, grant security interests in, and otherwise grant liens on, the Company’s assets pursuant to such agreements as may be reasonably requested, provided that no obligation of the Company under any such agreement, pledge or grant shall be effective until the Effective Time, (b) providing to the Lenders financial and other information in the Company’s possession in accordance with Section 6.5(a) and Section 6.5(b), including all financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act and of type and form customarily included in private placements under Rule 144A of the Securities Act, to consummate the offerings of any debt securities contemplated by the Commitment Letters, (c) making the Company’s officers available to assist the Lenders (including by participating in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies, and reasonably cooperating with the marketing efforts of Parent and Acquisition Sub and such lenders), (d) assisting with the preparation of materials for rating agency presentations, offering documents, syndication documents (including bank information memoranda, private placement memoranda, prospectuses and lender and investor presentations), business projections and similar documents required in connection with the Financing and other documents required in connection with obtaining the Debt Financing, authorizing the distribution of information (e) obtaining legal opinions and issuing customary representation letters to prospective lenders auditors 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 (i1) providing customary obtain accountants’ comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to the inclusion use of their audit report in respect of any financial statements of the Company and the Company Subsidiaries in any offering documents accountants’ reports relating to the Company, (2) assist the Parent and Acquisition Sub in obtaining corporate, credit and facility ratings from rating agencies for the Debt Financing and (iii3) reasonable assistance assist the Parent and cooperation to Buyer with respect to any auditor due diligence, (e) subject to Acquisition Sub in obtaining other documentation and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of items contemplated by the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in Commitment Letter or any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, as reasonably requested by Parent or is within the control of, the Group CompaniesAcquisition Sub, (gf) delivering to Buyer at least three (3) Business Days prior to the Closing furnishing all such documentation and other 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 Governmental Authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT U.S.A. Patriot Act and the requirements of 31 C.F.R. §1010.2302001, (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, but in each case, solely as relating to the Company and its subsidiaries and to the extent reasonable requested in writing by any Lender no less than five (5) Business Days prior to the Effective Time, (g) arranging for documentation reasonably facilitating the pledging of collateral (including requesting customary payoff letters, releases, lien terminations, waivers, consents, estoppels, approvals as may be required in connection therewith and customary for financings instruments of such typedischarge) to be delivered at or prior to Merger Closing relating to all indebtedness to be paid off, discharged and terminated on the Merger Closing, (h) taking corporate actions reasonably necessary to permit the consummation of the Debt Financing and to permit the proceeds thereof to be made available to the Company by the Company and its subsidiaries, (i) cooperating reasonably with internal the Lenders’ due diligence, to the extent customary and external counsel of Buyer in connection with providing customary back-up certificates reasonable and factual information regarding any legal opinion that such counsel may be required to deliver (j) otherwise reasonably cooperating in 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 consummation of the Indebtedness Financing. Parent shall promptly reimburse the Company for any reasonable out-of-pocket expenses 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 costs incurred 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 its affiliates’ obligations under this Section 6.13. Notwithstanding anything in this Agreement to the contrary, neither the Company nor any of its Affiliates’ reputation subsidiaries shall be required to pay any commitment or goodwillother similar fee or enter into any definitive agreement or incur any other liability or obligation in connection with the Financing (or any alternative financing) prior to the Effective Time.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Steinway Musical Instruments Inc), Agreement and Plan of Merger (Steinway Musical Instruments Inc)
Financing Cooperation. 8.11.1. Buyer may determine(a) Sellers shall use commercially reasonable efforts to take (and shall cause the Target Group Companies and their respective Representatives, including legal and accounting advisors, to use commercially reasonable efforts to take) all actions reasonably requested by the Purchaser or its financing sources or that are customary, in its sole discretioneach case, to obtain in connection with the Purchaser arranging debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company in connection 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 hereby (collectively, including one or more debt facilities, loan agreements, high yield offerings or other incurrences of indebtedness, New Debt Actions), such debt to perform its obligations hereunder. Prior to be arranged prior to, concurrently with or immediately following the Closing, subject to Section 8.11.2, the Company shall use including using reasonable best efforts with respect to: (i) cooperating with reasonable and customary due diligence by potential lenders, underwriters, initial purchasers or other financing sources, and shall counsel for any of the foregoing, which may include, subject to the terms and conditions in this Agreement, a reasonable number of site visits at the Target Company Real Property upon reasonable notice during normal business hours, (ii) assisting the Purchaser with the preparation of any materials for rating agency and investor presentations, bank information memoranda, confidential information memoranda, offering memoranda, private placement memoranda, registration statements, prospectuses, road show presentations, marketing materials and any other lender presentation materials, including provision of any information about the Target Group Companies for use in any such documentation, which is reasonably requested by the Purchaser or the Purchaser’s financing sources or which is deemed by the Purchaser’s financing sources to be necessary or advisable in order to market and consummate the New Debt Actions, (iii) participating in a reasonable best efforts to cause the Company Subsidiaries number of meetings, presentations, road shows, drafting sessions, due diligence sessions, sessions with prospective financing sources, initial purchasers, lenders or underwriters, and its and their respective Representatives tosessions with rating agencies, in each case at Buyer’s sole expensereasonable times and locations, provide to Buyer such cooperation reasonably requested including participation 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 operations senior management of the Target Group Companies, (iv) causing the Target Group Companies’ current and former independent auditors to provide reasonable and their customary assistance and cooperation, including (A) participating in a reasonable number of drafting sessions and accounting due diligence sessions, (B) provision of one or more comfort letters customarily provided in debt offerings pursuant to Rule 144A (including customary negative assurance on interim financial statements and the period since the most recent balance sheet included in the offering materials), including and the Target Group Companies will provide customary representation letters to such accountants, and (C) providing consents or authorization for use of their reports in any filings required to be made by the Purchaser pursuant to the Securities Act or the Exchange Act, (v) facilitating as promptly as reasonably practicalpracticable the execution and delivery of any definitive finance agreements, (a) furnishing Buyer with the Required Financial Information and purchase agreements, indentures, notes, guarantees, registration rights agreements, resolutions and/or any other pertinent information regarding the Group Companies documents related to any proposed debt financing as may be reasonably requested by Buyer the Purchaser, (vi) arranging for the completion preparation and timely delivery of any required legal opinions by counsel to the Debt FinancingTarget Group Companies, (bvii) participating in telephonic meetings facilitating as promptly as reasonably practicable the pledging, preparation, execution and otherwise delivery of any customary pledge and security documents, or other customary certificates, instruments, legal opinions or documents as may be reasonably assisting with requested by the preparation Purchaser to facilitate the pledging of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies collateral in connection with the New Debt Financing Actions, (viii) providing as promptly as reasonably practicable of documentation to the extent reasonable and customary for financings of such type, (c) reasonably assisting in Purchaser or the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda Purchaser’s financing sources all documentation and other similar marketing documents and due diligence efforts for information requested by the Debt Financing and (ii) 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 Purchaser 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 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, regulations (including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230Act), (hix) facilitating ensuring that any syndication efforts in connection with any proposed debt financing benefit from the Target Group Companies’ existing lending and assisting in the investment banking relationships, (x) preparation and delivery provision of any credit agreementsthe Required Information, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates (xi) assisting the Purchaser with the Purchaser’s preparation of pro forma financial statements customarily included in offering documents for high yield debt securities or other 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 information memoranda for financings of such typesyndicated bank financing, (ixii) cooperating with internal the marketing efforts of the Purchaser and external counsel its financing sources for any portion of Buyer a proposed debt financing, (xiii) in connection with providing customary back-up certificates and factual information regarding the case of any legal opinion that such counsel may be required to deliver proposed debt financing (or in connection with the Debt FinancingPurchaser’s current debt financing) that includes an asset-based loan facility, in each case, solely providing reasonable access (subject to confidentiality arrangements reasonably acceptable to the extent reasonable Sellers) to the Purchaser’s financing sources and customary for financings of such typetheir representatives to evaluate the Target Group Companies’ inventory, current assets, cash management and accounting systems, and (j) obtaining policies and providing documents to Buyer procedures relating thereto for the purpose of establishing collateral arrangements (including draft payoff lettersallowing access for field exams), (xv) relating to assisting with the repayment pay-off of existing indebtedness of the Indebtedness Target Group Companies and the release of related guarantees liens and Liens guaranties on the Closing Date (including obtaining customary pay-off letters, lien terminations and other instruments of discharge), and (xvi) updating any Required Information provided to the Purchaser or its financing sources as may be necessary for such Required Information to remain Compliant; provided, however, that notwithstanding anything in accordance this Agreement, (x) neither the Sellers nor any of the Target Group Companies shall (A) have, prior to the Closing, any liability or obligation under any documents associated with the terms of this Agreement. The Company hereby consentsPurchaser’s financing (collectively, on behalf of itself and the Group CompaniesDebt Financing Documents), (B) be required to the use of the logos of the Group Companies incur any other liability in connection with Purchaser’s financing or (C) be required to take any action that would require any director, manager, officer or employee of the Debt Financing; provided Target Group Companies to execute, prior to Closing, any document, agreement, certificate or instrument or agree to any change or modification of any document, agreement, certificate or instrument prior to the Closing (other than such documents, agreements, certificates or instruments the effectiveness of which is conditioned upon and will not take effect prior to the Closing) or (D) be required take any action or provide any assistance that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage unreasonably interferes with the Company’s ongoing operations of the Sellers or any of its Affiliates’ reputation the Target Group Companies and (y) the board of directors, or goodwillsimilar governing body, of the Target Group Companies shall not be required, prior to the Closing, to adopt resolutions approving the agreements, documents and instruments pursuant to which the Purchaser’s financing is obtained (other than resolutions the effectiveness of which is conditioned upon and will not take effect prior to the Closing).
Appears in 2 contracts
Samples: Unit Purchase Agreement, Unit Purchase Agreement (KLX Energy Services Holdings, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer a) The Company 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 its subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, use its and their respective commercially reasonable efforts to 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies Parent or Merger Sub in connection with the Debt Financing or the Equity Financing made by Parent or any of its subsidiaries and any SEC filings related to the Financing or the Equity Financing to be made by Parent, including, as applicable, by: (i) using reasonable best efforts to, upon reasonable advance notice, cause the extent Company’s 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 Financing or the Equity Financing; (ii) providing such customary historical financial and other customary pertinent information with respect to the Company and its subsidiaries as may be reasonably requested by Parent for financings of use in connection with the Financing or the Equity Financing and designating, upon request, whether any such typeinformation is suitable to be made available to lenders and other investors who do not wish to receive material non-public information with respect to the Company and its subsidiaries; (iii) providing information regarding the Company and its subsidiaries reasonably necessary to assist Parent in preparing pro forma financial statements if Parent determines such pro forma financial statements are legally required or customary in connection with the Financing or the Equity Financing or any other SEC filing required to be made by the Parent, (c) reasonably assisting it being understood that the Company need only assist in the preparation thereof, but shall not be required to independently prepare any separate pro forma financial statements and shall not be required to change its fiscal year; (iv) providing reasonable assistance to the Parent and its subsidiaries in connection with the preparation by the Parent of (i) customary SEC filings to be made by the Parent, offering memoranda, private placement memoranda, prospectuses, prospectus supplements, registration statements, bank confidential information memoranda, lender and investor presentations, offering documentsroad show materials, offering or private placement memoranda rating agency presentations and other similar marketing documents and due diligence efforts for the Debt Financing and materials, in each case, under this subsection (ii) customary authorization and representation lettersiv), each as required in connection with the Debt Financing or the Equity Financing and reasonably assisting with the preparation of the definitive documentation for the Financing or the Equity Financing, authorizing including by providing information reasonably necessary for 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 completion of any Group schedules thereto, in each case to the extent, and solely to the extent, such materials relate to information concerning the 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 companyits subsidiaries; (v) using commercially reasonable efforts to cause Deloitte & Touche LLP to cooperate with Parent, (d) including by participating in accounting due diligence sessions upon reasonable advance notice, using reasonable best efforts to cause obtain the Company’s independent registered accounting firm to provide customary assistanceconsent of, including (i) providing and facilitate the delivery of, customary comfort letters (including “as to customary negative assurance comfort” assurance) from, Deloitte & Touche LLP (including by providing customary management letters and “change period comfort”requesting legal letters to obtain such consent) in connection with any capital markets transaction comprising a part if reasonably necessary or customary for Parent’s use 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 its subsidiaries in any marketing or offering documents relating materials to be used in connection with the Debt Financing or the Equity Financing; (vi) cooperating reasonably with any customary due diligence requests by Parent, its Financing Sources and their respective legal counsel; (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, (fvii) reasonably assisting Parent in Buyer’s efforts to satisfy the conditions precedent set forth obtaining corporate, corporate family, credit, facility and securities ratings from rating agencies; (viii) furnishing promptly (and 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 event at least three (3) Business Days days prior to the Closing Date) all such documentation and other information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent Date by parties acting as lead arrangers, agents or underwriters, as applicable, required by U.S. regulatory authorities any Governmental Entity in connection with the Financing or the Equity Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT U.S. Patriot Act and (ix) delivering notices of prepayment within the requirements time periods required by the Company Credit Agreements and using reasonable best efforts to obtain customary payoff letters, lien terminations and instructions of 31 C.F.R. §1010.230discharge to the extent, (h) facilitating and assisting in the preparation manner contemplated by, this Section 6.14 and delivery Section 6.15 hereof, and give any other necessary notices to allow for the payoff, discharge and termination of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating all indebtedness required by this Agreement to be repaid and terminated (subject 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 deliver in 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 provisions of this AgreementSection 6.14 and Section 6.15). The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the trademarks, service marks and logos of the Group Companies Company and its subsidiaries in connection with the Debt Financing; provided that arrangement of the Financing or the Equity Financing in connection with the Merger if such trademarks, service marks and logos are used solely in a manner that is not intended to, nor is to or reasonably likely to, to harm or disparage the Company’s Company or any of its Affiliates’ subsidiaries or the reputation or goodwillgoodwill of the Company or any of its subsidiaries or any of their logos and on such other customary terms and conditions as the Company shall reasonably impose. Notwithstanding the foregoing, nothing herein shall require such cooperation to the extent it would (i) unreasonably disrupt the ordinary conduct of the business or operations of the Company or its subsidiaries, (ii) require the Company or its subsidiaries to agree to pay any fees, reimburse any expenses or otherwise incur any actual or potential liability or give any indemnities prior to the Effective Time unless Parent reimburses or is required to reimburse or indemnify the Company or its subsidiaries pursuant to this Agreement or otherwise agrees to do so, provided, however, that, with respect to any series of Company Notes or the Company Credit Agreements, neither the Company nor any of its subsidiaries shall be required to make any payments of outstanding principal, accrued and unpaid interest and/or applicable premiums or consent payments (other than with respect to scheduled payments of principal and interest) unless the Parent has irrevocably deposited funds sufficient to cover such amounts with the applicable trustee or agent, (iii) require the Company or its subsidiaries to take any action that would reasonably be expected, in the reasonable judgment of the Company after consultation with its legal counsel, to conflict with, or result in any violation or breach of, any applicable (A) laws or orders or (B) obligations of confidentiality (not created in contemplation hereof) binding on the Company or its subsidiaries (provided that in the event that the Company or its subsidiaries do not provide information in reliance on the exclusion in this clause (B), the Company and its subsidiaries shall provide notice to Parent promptly that such information is being withheld (but solely if providing such notice would not violate such obligation of confidentiality)), (iv) require the Company or its subsidiaries to (A) subject to the requirements of Section 6.14(a)(v) and 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 corporate action with respect to the Financing or the Equity 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 transactions contemplated by Section 6.15, (v) require the Company to prepare separate financial statements for any of its subsidiaries, financial statements pursuant to Rules 3-10 (other than assisting with the preparation of a footnote in Parent’s financial statements) or 3-16 of Regulation S-X or any new compensation information. Parent acknowledges and agrees that any access or information contemplated to be provided by the Company or any of its subsidiaries pursuant to this Section 6.14 shall, to the extent such information constitutes material non-public information of the Company, only be provided to other Persons, including any Financing Sources, if such other Person affirmatively agrees to maintain the confidentiality of such information pursuant to a customary confidentiality agreement and to comply with all federal and state securities laws and regulations applicable to such information or (vi) require the Company or any subsidiary thereof to incur additional indebtedness (including guarantees), such that the Company is unable to satisfy any applicable debt incurrence requirement at Closing in the merger covenant in the Indentures.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Walgreens Boots Alliance, Inc.), Agreement and Plan of Merger (Rite Aid Corp)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company Consistent 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 8.11.2applicable Laws, the Company shall use reasonable best efforts to, and shall cause its Subsidiaries and each of its and its Subsidiaries’ respective officers and employees to use reasonable best efforts to, provide to cause the Company Subsidiaries Parent and its and their respective Representatives toSubsidiaries, in each case at BuyerParent’s sole expense, provide to Buyer such all 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested in writing by Buyer for Parent in connection with (i) one or more equity or debt offerings or issuances of Parent, that Parent and its Subsidiaries may pursue prior to the completion Effective Time and (ii) the assumption, restatement or refinancing of the Debt Company Term Loan Credit Agreements by Parent and its Subsidiaries (any such transaction in clauses (i) or (ii) a “Financing”), (b) participating including, without limitation, in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and event such action is customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing applicable Financing, using reasonable best efforts to: (i) cooperate with customary marketing efforts relating to the extent reasonable and customary for financings of such typeFinancing, (c) reasonably including assisting in the preparation of (i) customary bank confidential information memoranda, private placement memoranda, lender and investor presentations, offering documentsprospectuses, offering or private placement memoranda and other similar marketing customary offering documents and due diligence efforts for the Debt Financing and marketing materials; (ii) customary authorization assist in the preparation of rating agency presentations and representation lettersparticipate in a reasonable number of meetings with rating agencies, each as required in connection roadshows, due diligence sessions, drafting sessions and meetings with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of debt and equity investors, in each case, at such documents, if any, do not include any information about any Group Company places (which may be by audio 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, (dvideoconference) 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”) as coordinated reasonably in 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 advance thereof at mutually agreed times; (iii) reasonable assistance deliver documentation and cooperation to Buyer other information reasonably requested by sources of such Financing as promptly as reasonably practicable with respect to any auditor due diligence, (ex) 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 know-your-customer” ”, FINCEN and anti-money laundering rules and regulations, including the PATRIOT Act and (y) the requirements U.S. Treasury Department’s Office of 31 C.F.R. §1010.230Foreign Assets Control and the Foreign Corrupt Practices Act, in each case, to the extent such information is required pursuant to the applicable Financing; (hiv) facilitating deliver as promptly as reasonably practicable all financial information and assisting real property and other diligence materials related to the Company and its Subsidiaries customary or reasonably necessary for the arrangement or completion of such Financing; (v) direct the Company’s independent auditors to cooperate with any Financing that is a securities offering consistent with their customary practice, including requesting the Company’s independent accountants to prepare and deliver customary comfort letters (it being understood that such customary comfort letters shall include a SAS 100 review of any interim financial statements and “negative assurance” comfort covering any “stub” period) if customary for such Financing, in connection with any Financing to the applicable underwriters, arrangers, initial purchasers or placement agents thereof in each case, on customary terms and consistent with the customary practice of such independent accountants; (vi) assist with the preparation of pro forma financial information and pro forma financial statements solely with respect to the Company to the extent customary or reasonably necessary for the arrangement or completion of the Financing, including, if applicable, of the type that would be required by Regulation S-X and Regulation S-K promulgated under the Securities Act for a public offering of securities of Parent and for Parent’s preparation of pro forma financial statements; (vii) assist in the preparation of customary projections, estimates and other forward looking financial information regarding the future performance of the Company to the extent customary or reasonably necessary for the arrangement or completion of the Financing; and (viii) the execution and delivery of any such definitive financing documents, including certificates, credit agreements, indentures, notes, underwriting agreements, note purchase agreements, security documentationsecurities purchase agreements, dealer manager agreements, solicitation agent agreements, authorization letters, guarantees, schedules, perfection certificates or legal opinions and other definitive documents relating to the Debt Financing relating to the Group Companiesdocuments, 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 as may be required reasonably necessary to deliver in connection with the Debt facilitate such Financing, in each case, solely case in form and substance reasonably satisfactory to the extent reasonable and customary for financings party executing such document; provided that any such documents referred to in this clause (viii) shall be effective no earlier than the Effective Time (other than any authorization letters that are required to be given in advance of such type, and (j) obtaining and providing documents time in order for the Financing to Buyer (including draft payoff letters) relating to be consummated on or after the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this AgreementEffective Time). The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the its and its Subsidiaries’ logos of the Group Companies in connection with the Debt any Financing; provided that such logos are used solely in a manner that is not intended to, nor to or is reasonably likely to, to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of such party or its Subsidiaries. Notwithstanding any other provision set forth herein or in any other agreement between Parent and the Company or its affiliates, the parties hereto agree that Parent may share with the arrangers and sources of such Financing customary projections and other confidential information with respect to the Company (including information about the Company’s Subsidiaries) after giving effect to the Merger and the transactions contemplated hereby that the parties have cooperated in preparing, and that Parent, its Subsidiaries and such arrangers and sources of Financing may share information about the Company and its Subsidiaries (notwithstanding anything to the contrary herein or in the Confidentiality Agreements) with potential sources of the Financing in connection with any marketing efforts in connection with the Financing, provided that the recipients of its Affiliates’ reputation or goodwillsuch information agree to customary confidentiality arrangements in form and substance reasonably acceptable to the Company.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Spirit Realty Capital, Inc.), Agreement and Plan of Merger (Realty Income Corp)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “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 The Company shall use reasonable best efforts toprovide to Parent, and shall cause the respective officers and employees of the Company, and use its commercially reasonable best efforts to cause the Representatives of the Company Subsidiaries and its and their respective Representatives toto provide to Parent, in each case at BuyerParent’s sole expense, provide to Buyer such all cooperation reasonably requested by Buyer Parent that is necessary or reasonably necessary required in arranging, obtaining and syndicating connection with any third party debt financing transaction or underwritten public offering of Parent Common Stock for cash that Parent may pursue prior to the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies)Closing Date, including the following: (a) furnishing Parent as promptly as reasonably practicalpracticable upon request by Parent with all financial statements, (a) furnishing Buyer with the Required Financial Information financial data and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion Company and its Subsidiaries of the Debt Financing, type that would be required by Regulation S-X and Regulation S-K promulgated under the Securities Act for a public offering of securities of Parent (including for use in Parent’s preparation of pro forma financial statements); and (b) participating requesting the Company’s independent accountants to prepare and deliver “comfort letters,” dated the date of each final offering document used in telephonic meetings connection with any securities offering by Parent (with appropriate bring-down comfort letters delivered on the closing date of any such offering), in compliance with professional standards (including providing “negative assurance” comfort and Statement on Auditing Standards No. 100 review of interim financial statements) and otherwise on terms reasonably assisting acceptable to Parent, as the case may be; provided, however, that none of the Company or any of its Subsidiaries shall be required to pay any fee or incur any liability in connection with any such financing, and no personal liability shall be imposed on any officers, directors or other Representatives of the preparation of appropriate Company. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and customary materials customary presentations, due diligence sessions documented out-of-pocket costs and expenses paid to third parties (including accounting due diligence sessionsadvisor’s fees and expenses) and sessions with rating agencies incurred by the Company in connection with the Debt Financing to cooperation provided in connection with 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 foregoing and (ii) customary authorization indemnify 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 hold harmless the Company’s independent registered accounting firm to provide customary assistance, including its Subsidiaries and their respective officers, directors and other Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties (i) providing customary comfort letters (including collectively, “negative assurance comfort” and “change period comfortLosses”) suffered or incurred by them in connection with any capital markets such financing transaction comprising a part of or public offering, and any information utilized in connection therewith; provided, however, that 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 foregoing indemnity shall not apply with respect to any auditor due diligenceLosses resulting from a willful or intentional breach of any representation, (e) subject to and conditioned on the occurrence warranty, covenant or agreement 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 Company or any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, Company Subsidiaries under this Agreement. All non-public 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 otherwise confidential information regarding any legal opinion that such counsel may the Company and Company Subsidiaries obtained by Parent, its Affiliates or their Representatives pursuant to this Section 6.14 shall be required to deliver in 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 kept confidential in accordance with the terms of this the Parent Confidentiality 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 Affiliates’ reputation or goodwill.
Appears in 2 contracts
Samples: Voting Agreement (Parkway Properties Inc), Voting Agreement (Thomas Properties Group Inc)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) 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 ClosingCompletion Date, subject Xxxxxx shall provide to Section 8.11.2Xxxxx, the Company and shall use reasonable best efforts cause its Subsidiaries to, and shall use all reasonable best efforts endeavours to cause the Company Subsidiaries respective officers, employees and advisors and other Representatives, including legal and accounting, of Xxxxxx and its and their respective Representatives Subsidiaries to, in each case at Buyer’s sole expense, provide to Buyer Xxxxx and its Subsidiaries such cooperation as may be reasonably requested by Buyer that is reasonably necessary Xxxxx in arranging, obtaining connection with the syndication and syndicating consummation of the Debt Financing, if any Financing (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the business or operations of the Group CompaniesXxxxxx and its Subsidiaries), including (i) participating in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required or necessary in connection with the Financing, (iii) furnishing Xxxxx as promptly as reasonably practical, (a) furnishing Buyer practicable with the Required Financial Information financial and other pertinent information regarding the Group Companies Xxxxxx and its Subsidiaries as may be reasonably requested by Buyer for Xxxxx to consummate the completion Financing, including all financial statements and financial and other data in respect of Xxxxxx and its Subsidiaries of the Debt type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were registered on Form S-1 under the Securities Act, including audits thereof to the extent so required (which audits shall be unqualified, provided, that Xxxxx acknowledges that no audits other than those set forth in the Scheme Document, the Joint Proxy Statement or the Form S-4 are required), (iv) providing such documents and other information relating to Xxxxxx and its Subsidiaries as may be reasonably required to enable the delivery of any customary negative assurance opinion and customary comfort letters relating to the Financing, (bv) participating using all reasonable endeavours to obtain the consents of Xxxxxx’x accountants for use of their reports on the audited financial statements of Xxxxxx in telephonic meetings and otherwise any materials relating to the Financing, (vi) using reasonable endeavours to obtain Xxxxxx’x accountant’s comfort letters reasonably assisting requested by Xxxxx, (vii) reasonably cooperating with the preparation of appropriate and customary materials customary presentations, requests for due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable customary and customary for financings of such typereasonable, (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 (ii) 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, (dviii) using reasonable best efforts endeavours to cause ensure that the Company’s independent registered accounting firm to provide customary assistance, including Financing benefits from the existing lender relationships of Xxxxxx and its Subsidiaries and (iix) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in 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 other information about Xxxxxx and its Subsidiaries as is reasonably requested in writing by Buyer at least ten (10) Business Days prior Xxxxx reasonably in advance of the Completion Date in connection with the Financing that relates 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 without limitation, the USA PATRIOT Act and the requirements ACT; provided that none of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery Xxxxxx or any 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 its Subsidiaries shall be required to deliver pay any commitment or other fee or incur any other cost or expense in connection with the Debt FinancingFinancing (other than fees and expenses of its accountants and attorneys that are promptly reimbursed by Xxxxx under Clause 7.8(b)); and provided, in each casefurther, solely that (A) none of Xxxxxx nor any of its Subsidiaries shall be required to incur any liability (other than the extent reasonable fees and customary for financings expenses of such type, its accountants and (jattorneys that are promptly reimbursed by Xxxxx under Clause 7.8(b)) 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 Financing prior to the Completion Date, (B) the Xxxxxx Board and officers of Xxxxxx prior to the Completion Date and the directors and officers of the Subsidiaries of Xxxxxx prior to Completion Date shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Financing is not intended toobtained, (C) none of Xxxxxx nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation Subsidiaries shall be required to execute, prior to the Completion Date, any definitive financing agreements, including any credit or goodwillother agreements in connection with the Financing, and (D) except as expressly provided above, none of Xxxxxx nor any of its Subsidiaries shall be required to take any corporate actions prior to the Completion Date to permit the consummation of the Financing.
Appears in 2 contracts
Samples: Transaction Agreement (Cooper Industries PLC), Agreement (Eaton Corp)
Financing Cooperation. 8.11.1. Buyer may determine(a) Subject to Section 7.13(b), in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “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 prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts toDanube shall, and shall use reasonable best efforts to cause the Company Danube Subsidiaries and its and their respective Affiliates and Representatives to, in each case at Buyer’s sole expense, use its and their respective reasonable best efforts to provide to Buyer such all reasonable and/or customary cooperation reasonably and assistance 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings arrangement, syndication and/or consummation 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 the transactions related thereto (ii) customary authorization and representation letterscollectively, each as required in connection with the Debt “Available 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) including 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 connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents provide 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 Amazon at least three five (35) Business Days prior to the Closing all such documentation Date information regarding Danube and information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent Danube Subsidiaries required by U.S. regulatory authorities or any Debt Financing Sources under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act that is requested by Amazon at least eight (8) Business Days prior to the Closing Date; (ii) participate in a customary and reasonable number of meetings (which may be virtual) between (A) Debt Financing Sources and (B) senior management and the requirements Representatives of 31 C.F.R. §1010.230Danube and the Danube Subsidiaries (in each instance for this clause (B), with appropriate knowledge and expertise in the subject matter of such meeting), investor presentations, road shows, drafting sessions, due diligence sessions and sessions with Debt Financing Sources and rating agencies and other syndication activities, in each case that are reasonable and/or customary for financings of a type similar to the Available Financing; (hiii) facilitating furnish to Amazon and assisting the Debt Financing Sources in a timely manner financial and other information regarding Danube and the Danube Subsidiaries as may be reasonably requested by Amazon or any of the Debt Financing Sources in connection with the Debt Financing; (iv) provide customary assistance to Amazon and its Debt Financing Sources in the preparation of (A) any syndication documents and delivery of any credit agreementsmaterials, indenturesincluding information memoranda (including an additional bank information memoranda that does not contain material non-public information), notescustomary offering memoranda (including a preliminary and final offering memorandum that is suitable for use in a customary “high-yield road show” for an offering by Amazon), underwriting agreementsinvestor presentations and other marketing documents customarily used to arrange financing similar to the Available Financing (collectively, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating to the “Marketing Documentation”) and (B) materials for rating agency presentations; (v) furnish Amazon and the Debt Financing relating Sources with customary authorization letters with respect to the Group Companies, presence or absence of material non-public information and their respective businesses accuracy of the information contained therein with respect to Danube and the Danube Subsidiaries to be included in the definitive documents relating Marketing Documentation and containing a representation that the public-side version does not include material nonpublic information about Danube and the Danube Subsidiaries or their respective securities; (vi) provide customary assistance to Amazon in the Debt Financingnegotiation, and assist with the preparation, execution and delivery of any credit, loan or other agreements, indentures, note purchase agreements or similar agreements, pledge or security documents, interest rate or currency hedging documents or other similar instruments, certificates or documents, and the samerespective schedules and exhibits thereto, in each caseconnection with the Available Financing; (vii) assist Amazon in obtaining surveys, solely title insurance and other items customarily required in connection with real property mortgages, as reasonably requested by Amazon and to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer required to be delivered in connection with providing customary back-up certificates the Available Financing; (viii) cooperate (and factual information regarding cause counsel to Danube and the Danube Subsidiaries to cooperate) with Amazon’s legal counsel in connection with any legal opinion opinions that such counsel may be required to be delivered by Amazon’s legal counsel in connection with the Available Financing (for the avoidance of doubt, Danube’s legal counsel will not be required to deliver any legal opinion); (ix) cause its independent registered public accounting firm to provide customary assistance with the due diligence activities of Amazon and the Debt Financing Sources and the preparation of Marketing Documents; (x) facilitate the obtaining of (A) audit reports, consents and customary comfort letters (including customary “negative assurances” comfort) of accountants and auditors with respect to financial statements and other financial information for Danube and the Danube Subsidiaries included in any Marketing Documentation and (B) the Payoff Letters and the Payoff Letter Ancillaries; (xi) otherwise facilitate the granting of a security interest (and perfection thereof) in collateral (including assistance with the negotiation and preparation of, disclosure schedules and perfection certificates) in connection with the Debt Financing, in each case, solely to the extent reasonable and customary for financings not prohibited or restricted under applicable Law or any Contract 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 Danube or any of its Affiliates’ reputation , provided that no pledge shall be effective until the Closing; (xii) provide unaudited quarterly and audited annual financial statements for each fiscal quarter or goodwillfiscal year ended after the date of this Agreement and prior to the Closing Date in the form provided internally to senior management of Danube as promptly as practicable following the end of such fiscal quarter or fiscal year (but in any event within 45 days following the end of such fiscal quarter (or, with respect to the fiscal quarter ended September 30, 2023, 60 days) or 90 days following the end of such fiscal year), provided that no quarterly financial statements shall be required to be delivered for the fiscal quarter ended June 30, 2023; (xiii) provide customary requested historical financial data of Danube and the Danube Subsidiaries as may be reasonably requested by Amazon and the Debt Financing Sources for Amazon to prepare a customary preliminary offering memorandum suitable for use in a customary “high yield road show” for a private placement of non-convertible debt securities of Amazon pursuant to Rule 144A (without registration rights) promulgated under the Securities Act and other historical financial information of Danube and the Danube Subsidiaries for the preparation by Amazon of customary pro forma financial information and pro forma financial statements to the extent required by Regulation S-X under the Securities Act other accounting rules and regulations of the SEC, and/or the Debt Financing Sources pursuant to any commitment letters; and (xiv) cause the taking of corporate and organizational actions reasonably necessary to permit the closing of Amazon’s Debt Financing; it being understood and agreed that no such corporate or other action will take effect prior to the Closing (other than customary authorization letters and customary representation letters). For the avoidance of doubt, the financial statements referred to in the foregoing clause (xii) will be prepared in accordance with IFRS and the unaudited quarterly financial statements will be reviewed by the independent accountants of Danube as provided in the procedures specified by PCAOB AS 4015; provided that no opinion shall be required with respect to such review of such unaudited financial statements.
Appears in 2 contracts
Samples: Shareholder’s Agreement (Bungeltd), Shareholder’s Agreement (Bungeltd)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xi) 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 its reasonable best efforts toto provide to Parent and Merger Sub, and shall cause each of its Subsidiaries to use its reasonable best efforts to provide, and shall use commercially reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives tonon-legal Representatives, including accounting, to provide (in each case at BuyerParent’s sole expense, provide to Buyer such ) all cooperation reasonably requested by Buyer Parent that is customary in connection with the arrangement of any Debt Financing in connection with the transactions contemplated hereby, including, but not limited to using commercially reasonable efforts to (provided, however, that nothing in this Section 7.13 shall require the Company, its Subsidiaries or any of its or their Representatives to disclose any information that is subject to attorney-client, attorney work product or similar privilege or to contravene Law or violate any Contract), (i) assist in preparation for and participate (and use commercially reasonable efforts to cause management of an appropriate level to participate) in a reasonable 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, and presentations with prospective lenders and rating agencies, (ii) assist Parent 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 the Debt Financing (including executing a customary authorization letter to the extent reasonably requested by the Debt Financing Source authorizing the distribution of information about the Company and its Subsidiaries to prospective lenders), (iii) furnish Parent with the historical financial statements of the Company reasonably requested by the Debt Financing Sources (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 arranging, obtaining and syndicating connection with the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies Financing as may be reasonably requested by Buyer for Parent or the completion Merger Sub, (v) assist Parent in delivering original stock certificates in the possession of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) 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 (ii) 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 documentsCompany, 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 original stock powers (or, if any Group Company were a public reporting companyany, (dsimilar documents for limited liability companies) 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 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 extent customary and reasonably required on or prior to the Closing Date by any definitive documentation with respect of any financial statements of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing (including assisting in obtaining copies thereof prior to the Closing Date), and (iiivi) take reasonable assistance and cooperation to Buyer with respect to any auditor due diligencecorporate actions, (e) subject to and conditioned on only effective upon the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing; provided, that the Company shall not be required to provide, or cause its Subsidiaries or Representatives to provide, cooperation under this Section 7.13(c) that: (fA) reasonably assisting unreasonably interferes with the ongoing business of the Company or its Subsidiaries; (B) causes any covenant, representation or warranty in Buyer’s efforts this Agreement to satisfy the conditions precedent 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 Closing, to pay any definitive document relating commitment or other similar fee or incur or become subject to any other liability or obligation in connection with the Debt Financing which is not otherwise funded or promptly reimbursed by Parent; and (E) 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. So long as requested by Parent at least ten (10) days prior to the extent satisfaction of such condition requires the cooperation of, or is within the control ofClosing Date, the Group CompaniesCompany will, (g) delivering and will cause each of its Subsidiaries to, use commercially reasonable efforts to Buyer furnish Parent and the Merger Sub promptly, and in any event at least three (3) Business Days prior to the Closing Date, all such documentation and other information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior with respect to the Closing to the extent Company and its Subsidiaries that is required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation, the PATRIOT Act and the requirements of beneficial ownership regulation set forth in 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 deliver in 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, consents to the use of the its and its Subsidiaries’ trademarks, service marks or logos of the Group Companies in connection with the Debt Financing; provided provided, that such trademarks, service marks or logos are used solely in a manner that is not intended to, nor is to or reasonably likely to, to harm or disparage the Company’s Company or any of its Affiliates’ Subsidiaries or the reputation or goodwillgoodwill of the Company or any of its Subsidiaries 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 in form reasonably acceptable to Parent 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 at Parent’s expense immediately 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 other governing body of the Company and its Subsidiaries as constituted after giving effect to the Closing.
Appears in 2 contracts
Samples: Paying Agent Agreement (Majesco), Agreement and Plan of Merger (Majesco)
Financing Cooperation. 8.11.1. Buyer may determine(a) Prior to the Closing, in the Company shall use commercially reasonable efforts to cooperate, and shall cause the Company Subsidiaries to use commercially reasonable efforts to cooperate, and shall use its sole discretioncommercially reasonable efforts to cause its and their Representatives, to obtain provide, on a timely basis, all reasonable cooperation requested by Parent in connection with the documentation and arrangement of any debt financing to fund any portion of the Purchase Price financing, including repurchase agreements (the “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 operations of the Group Companies), including as promptly as reasonably practical, (ai) furnishing Buyer with the Required Financial Information providing customary financial and other pertinent information regarding the Group Companies Company and the Company Subsidiaries, including the financial information required to be delivered in connection with the Debt Financing and such other information as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) 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 (ii) customary authorization and representation letters, each as required Parent in connection with the Debt Financing, authorizing (ii) assisting in the distribution preparation of information to prospective lenders customary documents 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 assistancematerials, including (i) providing customary comfort letters (including “negative assurance comfort” confidential information memoranda, lender and “change period comfort”) investor presentations and similar documents and materials in connection with any capital markets transaction comprising a part of the Debt Financing, (iiiii) participating in a reasonable number of meetings, due diligence sessions and presentations, (iv) providing reasonable and customary consents assistance to Parent and its Financing Sources in (A) the inclusion preparation of their audit report all credit agreements (including review of schedules for completeness), currency or interest hedging agreements or other agreements, and reasonably requested customary certificates, opinions or documents, including customary certificates with respect to solvency matters, in connection with the Debt Financing and (B) the negotiation, preparation and delivery of amendments to or the termination of any of the Company’s or the Company Subsidiaries’ existing credit agreements, currency or interest hedging agreements, or other agreements, including repurchase agreements and related documentation in respect of the Company’s or the Company Subsidiaries’ borrowings collateralized by residential mortgage backed securities, securitized mortgage loans, other mortgage and mortgage related assets or other investment securities (including by negotiating amendments, waivers or supplements reasonably satisfactory to Parent with respect to any financial statements and all obligations of the Company and the Company Subsidiaries under such repurchase agreements and related documentation which are intended by Parent to be terminated in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer connection 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 the Transactions), in each case, on terms reasonably satisfactory to Parent and funding of that are reasonably requested by Parent in connection with the Debt Financing, (fv) permitting any cash and marketable securities of the Company and the Company Subsidiaries to be made available to Parent and Merger Sub following the First Merger Effective Time, (vi) cooperating reasonably assisting in Buyer’s efforts to satisfy with the conditions precedent set forth in any definitive document relating to the Debt Financing Sources’ due diligence, to the extent satisfaction of such condition requires customary and reasonable and (vii) furnishing Parent and the cooperation of, or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior Financing Sources promptly with all documentation and other information required by any Governmental Entity with respect 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 financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and Act; provided that (A) no obligation of the requirements Company or any of 31 C.F.R. §1010.230the Company Subsidiaries under any such agreements, amendments. authorizations, resolutions, consents shall be effective until the actual occurrence of the First Merger Effective Time (h) facilitating and assisting in other than amendments to or the preparation and delivery termination of any credit agreementsof the Company’s or the Company Subsidiaries’ existing repurchase agreements and related documentation in respect of the Company’s or the Company Subsidiaries’ borrowings collateralized by residential mortgage backed securities, indenturessecuritized mortgage loans, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates other mortgage and mortgage related assets or other definitive documents relating investment securities which shall be effective prior to the Debt Financing relating to Closing) and (B) none of the Group Companies, and Company or any of the Company Subsidiaries or 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 Representatives shall be required to deliver pay any commitment or other similar fee or incur any other cost or expense that is not promptly reimbursed by Parent in connection with the Debt Financing, in each case, solely Financing prior to the extent reasonable and customary for financings of such type, First Merger Effective Time and (jC) obtaining and providing documents no member of the Company Board shall be required to Buyer (including draft payoff letters) relating take any action with respect to the repayment Debt Financing and neither the Company nor any of the Indebtedness and Company Subsidiaries shall be obligated to take any action that requires action or approval by the release Company Board prior to the First Merger Effective Time. All non-public or other confidential information provided by the Company or any of related guarantees and Liens its Representatives pursuant to this Section 6.16 shall be kept confidential in accordance with the terms of this Confidentiality Agreement. The Company hereby consents, on behalf of itself and the Group Companies, except that Parent shall be permitted to the use of the logos of the Group Companies in connection with the Debt Financing; provided that disclose 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 Affiliates’ reputation or goodwillinformation to potential Financing Sources subject to customary confidentiality undertakings by such potential Financing Sources.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Apollo Commercial Real Estate Finance, Inc.), Agreement and Plan of Merger (Apollo Residential Mortgage, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) 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 8.11.2upon the reasonable request of Parent, the Company shall, and shall use reasonable best efforts cause its Subsidiaries to, and shall use its reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives who are not officers or employees of the Company or its Subsidiaries to, in each case at Buyer’s sole expensecase, provide use reasonable best efforts to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary cooperate with Parent in arranging, obtaining and syndicating the Debt connection with any Financing, if including any offering of securities, requested repayment or refinancing of Indebtedness, and such reasonable best efforts shall include: (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations i) causing management teams of the Group Companies)Company, including as promptly as reasonably practicalwith appropriate seniority and expertise, (a) furnishing Buyer with the Required Financial Information at reasonable times and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financingupon reasonable advance notice, (b) participating to participate in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary meetings, rating agency presentations, due diligence sessions and road shows, if any; (ii) providing information with respect to the Company and its Subsidiaries to Parent and its Representatives (including accounting due diligence sessionsthe Financing Sources) as reasonably requested by Parent; (iii) preparing and furnishing to Parent on a timely basis the Required Information, which shall be prepared in accordance with applicable securities Laws, and other financial data (including such information reasonably necessary to allow Parent to prepare pro forma financial statements in accordance with applicable securities Laws) and sessions with rating agencies in connection with such other financial information concerning the Debt Financing Company and its Subsidiaries as reasonably requested by Parent, including, without limitation, balance sheet, income statements and statements of cash flows for each subsequent interim financial quarter ended at least forty-five (45) days prior to the extent reasonable and customary for financings of such type, Closing Date; (civ) reasonably assisting in the preparation of (i) customary offering memoranda, private placement memoranda, prospectuses, prospectus supplements, bank confidential information memoranda, lender and investor rating agency presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and materials (ii) 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 applicable securities Laws) and state securities laws if any Group Company were a public reporting company, similar documents (d“Offering Documents”); (v) (A) using its reasonable best efforts to cause Deloitte or other relevant accountants of the Company’s independent registered accounting firm Company and its respective Subsidiaries to provide customary assistancecooperate with Parent, including (i) providing by participating in drafting sessions and accounting due diligence sessions, and using its reasonable best efforts to obtain the consent of, and customary comfort letters (including “negative assurance comfort” and “change period comfort”) from, such accountants to the extent required in connection with any capital markets transaction comprising a part offering of the Debt Financing, (ii) providing customary consents to the inclusion securities by Parent if necessary for Parent’s use of their audit report in respect of any financial statements of the Company or its Subsidiaries on a timely basis and (B) cooperating with Parent’s legal counsel in connection with any legal opinions that such counsel may be required to deliver in connection with any Financing; (vi) assisting in the amendment or novation of any Derivative Transaction of the Company Subsidiaries or its Subsidiaries, in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligenceeach case, (e) subject to and conditioned on the occurrence terms that are reasonably requested by Parent; provided that no obligation 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 Company or its Subsidiaries under any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, amendments or is within the control of, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to novations shall be effective until the Closing Date; (vii) furnishing promptly all such documentation and other information required by any Governmental Authority or 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 any Financing Source under applicable “know your customer,” anti-bribery and anti-money laundering rules and regulations, including the PATRIOT Act, the Foreign Corrupt Practices Act and the requirements of 31 C.F.R. 1977, as amended, 15 U.S.C. §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§ 78dd 1 et seq., and their respective businesses to be included in economic sanctions administered by the definitive documents relating to the Debt Financing, and assist with the execution and delivery Office of Foreign Assets Control of the same, in each case, solely U.S. Treasury Department to the extent reasonable requested at least seven (7) Business Days prior to Closing; (viii) in connection with any Financing, executing and delivering any definitive financing documents as reasonably requested by Parent and delivering such officer’s certificates (other than any solvency certificate) as are customary for in financings of such type, (i) cooperating with internal type 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 deliver in connection with the Debt Financingas are, 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 good faith determination of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consentspersons executing such officer’s certificates, on behalf of itself and the Group Companies, to the use of the logos of the Group Companies in connection with the Debt Financingaccurate; provided that no obligation of the Company or its Subsidiaries under any such logos are used solely definitive financing documents, including any pledge and security documents, shall be effective until the Closing Date; (ix) causing the taking of any corporate, limited liability company or partnership actions, as applicable, by the Company or its Subsidiaries reasonably necessary to permit the completion of any Financing; (x) seeking to obtain customary payoff letters, lien terminations and releases and instruments of discharge to be delivered at Closing providing for the payoff, discharge and termination on the Closing Date of all Indebtedness and release of Encumbrances contemplated by any repayment or refinancing of such Indebtedness to be paid off, discharged and terminated on the Closing Date; provided that the documents in a manner respect of such arrangements contemplated by this clause (x) shall not need to be effective until the Closing Date; and (xi) using reasonable best efforts to ensure that is not intended to, nor is reasonably likely to, harm or disparage the syndication efforts in respect of any Financing benefit from the Company’s existing lending and investment banking relationships. If at any time any information in any Offering Document should be discovered by the Company or any of its Affiliates’ reputation Representatives that should be set forth in an amendment or goodwillsupplement to such Offering Document, so that such Offering Document shall not contain an untrue statement of a material fact, omit to state a material fact that is required to be stated therein or omit to state a material fact that is necessary to be stated therein in order for a statement not to be misleading, the Company shall promptly notify Parent thereof and provide any such information to be set forth in such amendment or supplement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Washington Gas Light Co)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) 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 its reasonable best efforts to, and shall cause its Subsidiaries to use their reasonable best efforts to, and shall use its reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case provide, at Buyer’s sole expensethe expense of Parent, provide to Buyer such all cooperation reasonably requested by Buyer that is reasonably Parent necessary in arranging, obtaining and syndicating customary for the arrangement of the Debt FinancingFinancing (including, if solely for purposes of this Section 5.13, one or more offerings of “high yield” non-convertible debt securities to be issued or incurred in lieu of any bridge facility contemplated by the Debt Commitment Letter or pursuant to any “market flex” or securities demand provisions of the applicable fee letter) (provided provided, that such requested cooperation is consistent with applicable Laws and does not neither unreasonably interfere interferes with the ongoing operations of the Group CompaniesCompany or any of its Subsidiaries nor conflicts with guidelines reasonably necessary in response to or related to COVID-19), including as promptly as reasonably practicalby (i) participating in a reasonable number of meetings (including meetings with prospective lenders and investors), presentations, road shows, due diligence sessions (including, directing the Company’s auditors to participate in such sessions or in separate due diligence calls) and sessions with rating agencies, in each case, at reasonable times, on a virtual basis and with reasonable advance notice, (aii) furnishing Buyer with the Required Financial Information executing and delivering Definitive Agreements and other pertinent information regarding certificates (including a certificate of the Group Companies chief financial officer of or person performing similar functions for the Company with respect to solvency matters substantially in the form attached to the Debt Commitment Letter) as may be reasonably requested by Buyer Parent, and to the extent required by the Debt Financing, if requested by Parent, using reasonable best efforts to facilitate the pledging of, and perfection of security interests in, collateral, including, in the case of any proposed debt financing that includes an asset-based loan facility, by permitting the evaluation or appraisal of assets and the taking of all actions reasonably requested by Parent necessary to (A) permit the Lenders or their designees to evaluate the Company’s and its Subsidiaries inventory, current assets, cash management and accounting systems, policies and procedures relating thereto for the completion purpose of establishing collateral arrangements (including conducting the commercial finance examination and inventory appraisals contemplated by the Debt Commitment Letter) and (B) establish bank and other accounts and blocked account and control agreements in connection with the foregoing; in each such case, effective no earlier than the Effective Time, (iii) furnishing Parent and the Lenders as promptly as reasonably practicable 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, (iv) if requested by Parent, using reasonable best efforts to assist Parent in connection with Parent’s preparation of customary pro forma financial statements as of, and for the most recent twelve-month period ending on, the latest balance sheet date included in clause (i) of the Required Financial Information; 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), offering documents, private placement memoranda 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, (bvii) participating in telephonic meetings providing drafts of the Payoff Letter and otherwise reasonably assisting with notices as may be required pursuant to Section 5.20 and giving (by the preparation of appropriate and customary materials customary presentations, due diligence sessions date required under the agreements governing such indebtedness) any necessary notices (including accounting due diligence sessions) conditional notices of prepayment and sessions with rating agencies redemption), to allow for the prepayment, redemption, payoff, satisfaction, discharge and termination in connection with full at the Debt Financing Closing of all indebtedness required by this Agreement to be repaid on the extent reasonable and customary for financings of such typeClosing Date, (cviii) reasonably assisting in the preparation of (i) customary bank information memorandaif requested by Parent, lender and investor presentationsproviding, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) 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 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 Date, all such documentation and other information relating to the Company and its Subsidiaries 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 USA PATRIOT Act and including, if the requirements Company or any of 31 C.F.R. §1010.230its Subsidiaries qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certificate (each as defined in the Debt Commitment Letter), to the extent requested by Parent in writing at least nine (9) Business Days prior to the Closing Date, (hix) facilitating directing the Company’s auditors to provide customary comfort letters (including “negative assurance” comfort and assisting change period comfort) reasonably requested by Parent with respect to financial information of the Company included in the preparation and delivery of any credit agreementssyndication, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates offering or other definitive marketing documents relating to Debt Financing that consists of debt securities in which the consolidated financial statements of the Company are included, and, if required, customary consents to the use of their audit reports on the consolidated financial statements of the Company in any syndication, offering or other marketing documents relating to the Debt Financing relating to in which 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 consolidated financial statements of the sameCompany are included, in each casecase subject to such auditors’ policies and procedures and applicable auditing standards, solely and (x) during the Marketing Period, updating any Required Financial Information provided to Parent as may be necessary for such Required Financial Information to remain Compliant. Notwithstanding the extent reasonable and customary for financings foregoing, neither the Company nor any 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 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 and the notices of redemption or prepayment referred to in clause (vii) 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, (C) require the Company or any of its Subsidiaries to pay any commitment or other similar fee or incur any other expense, liability or obligation (other than those set forth in this Section 5.13) in connection with the Debt Financing, in each case, solely Financing prior to the extent reasonable Closing or have any obligation of the Company or any of its Subsidiaries under any agreement, certificate, document or instrument (other than the authorization and customary for financings representation letters referred to in clause (v)(A) above or prepayment or redemption notices referred to in clause (vii) above) be effective until the Closing, or redeem, tender, discharge or defease the Senior Secured Notes or the Senior Secured Notes Indenture prior to the Closing, (D) cause any director, officer or employee or stockholder of such typethe Company or any of its Subsidiaries to incur any personal liability, (E) 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, (F) 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, (G) 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 (jy) obtaining and providing documents would not otherwise be available to Buyer (including draft payoff letters) relating to the repayment it or capable of the Indebtedness and the release of related guarantees and Liens in accordance being prepared by it without undue burden or other than with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of its commercially reasonable efforts or (H) require the logos Company or any of its Subsidiaries to enter into any instrument or agreement (other than the Group Companies authorization and representation letters referred to in clause (v)(A) above or prepayment or redemption notices referred to in clause (vii) 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, promptly upon request by the Company, reimburse the Company following termination of this Agreement for all reasonable out-of-pocket costs incurred by the Company or its Subsidiaries or their respective Representatives in connection with the cooperation contemplated by this Section 5.13 and shall indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs or expenses (including legal fees and expenses), awards, judgments and amounts paid in settlement suffered or incurred by them in connection with the arrangement of the Debt 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 that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm writing by the Company or disparage the Company’s or any of its Affiliates’ reputation or goodwillSubsidiaries specifically in connection with its obligations pursuant to this Section 5.13).
Appears in 2 contracts
Samples: And (At Home Group Inc.), Agreement and Plan of Merger (At Home Group Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of From and after the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller date hereof 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 pending the Closing, subject to Section 8.11.2unless Buyer shall otherwise consent in writing, the Company shall use reasonable best efforts toSellers shall, and shall use cause Company to provide on a timely basis all such reasonable best efforts to cause assistance and cooperation in connection with the Company Subsidiaries and its and their respective Representatives to, Financing (as defined in each case at Buyer’s sole expense, provide to Buyer such cooperation Section 9.9 below) as may be reasonably requested by Buyer Buyer, including (i) making senior management, officers and advisors of Company reasonably available for customary lender meetings and cooperating with prospective sources of financing in performing their due diligence; (ii) subject to customary confidentiality arrangements, providing due diligence materials to potential financing sources; (iii) furnishing financial and other information that is reasonably necessary required 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 connection with the operations Financing (including the timely delivery of the Group Companiesfinancial information required to be delivered under the Financing Commitment (as defined in Section 9.9 below)); (iv) assisting Buyer and the Financing Source in the preparation of all information memoranda, including as promptly as reasonably practicallender presentations, (a) furnishing Buyer rating agency presentations, and similar documents in connection with the Required Financial Information Financing; (v) reasonably assisting Buyer and the Financing Source in the negotiation, preparation and execution of definitive transaction documents for the Financing and other pertinent information regarding the Group Companies documents as may be reasonably requested by Buyer in connection therewith (including, without limitation, executing or obtaining appropriate corporate resolutions, certificates and opinions of counsel and other documents related thereto); (vi) entering into definitive transaction documents for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions Financing (including accounting due diligence sessionscredit agreements, notes, guarantees, pledge and security agreements and account control agreements) and sessions with rating agencies consummating the borrowings thereunder, so long as they only become effective immediately prior to the Closing; (vii) facilitating the pledge of and granting and perfection of Liens on applicable collateral (including the release, identification, grant or perfection of any Liens on the assets of Company), if any, to provide security in connection with the Debt Financing to at and after the extent reasonable and customary for financings of such type, Closing; (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 (ii) 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, (dviii) using reasonable best efforts to cause obtain the Company’s independent registered accounting firm assistance of accountants of Company to provide customary assistanceconsents for the use of their reports in materials related to the Financing; (ix) using commercially reasonable efforts to obtain such consents, including (i) providing customary comfort letters (including “negative assurance comfort” approvals and “change period comfort”) authorizations which may be reasonably requested by Buyer in 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 collateral arrangements in connection therewith; and (iiix) reasonable assistance and cooperation to cooperating with 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 ofof Company; provided that neither Company nor any of its directors, the Group Companiesofficers, (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 regulationsmanagers or employees, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230nor any Seller, (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 shall be required to deliver pay any commitment or other similar fee or to incur any other Liability or expense whatsoever (other than fees and expenses to be reimbursed by Buyer) in connection with the Debt Financing, in each case, solely Financing prior to the extent reasonable and customary for financings of such typeClosing, 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 provided, further, that no action or inaction by 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 Affiliates’ reputation directors, officers, managers or goodwillemployees, or by any Seller, under this Section 5.8 may form the basis of any claim by Buyer or Acquisition Co. that the Financing was delayed or in any other way negatively impacted thereby, any and all of which claims are hereby waived by Buyer and Acquisition Co, in each case so long as Sellers shall have sought in good faith to comply, and to cause Company to comply, with the provisions of this Section 5.8.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Smart Balance, Inc.), Membership Interest Purchase Agreement (Smart Balance, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine(a) Consistent with applicable Laws, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “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 VEREIT shall use reasonable best efforts to, and shall cause its Subsidiaries and each of its and its Subsidiaries’ respective officers and employees to use reasonable best efforts to, provide to cause the Company Subsidiaries Realty Income and its and their respective Representatives toSubsidiaries, in each case at BuyerRealty Income’s sole expense, provide to Buyer such all 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested in writing by Buyer for Realty Income that is necessary in connection with (i) the completion Realty Income Credit Agreement Amendment and the Realty Income PPN Amendment, (ii) the arranging, obtaining and syndication of the OfficeCo Debt Financing (as defined in Exhibit A)and (iii) one or more equity or debt offerings of Realty Income, that Realty Income and its Subsidiaries may pursue prior to the Effective Time (any such transaction in clause (ii) or (iii) a “Financing”), (b) participating including, without limitation, in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and event such action is customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing applicable Financing, using reasonable best efforts to: (i) cooperate with customary marketing efforts relating to the extent reasonable and customary for financings of such typeFinancing, (c) reasonably including assisting in the preparation of (i) customary bank confidential information memoranda, private placement memoranda, lender and investor presentations, offering documentsprospectuses, offering or private placement memoranda and other similar marketing customary offering documents and due diligence efforts for the Debt Financing and marketing materials; (ii) customary authorization assist in the preparation of rating agency presentations and representation lettersparticipate in a reasonable number of meetings with rating agencies, each as required in connection roadshows, due diligence sessions, drafting sessions and meetings with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of debt and equity investors, in each case, by audio or videoconference at 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”) times as coordinated reasonably in 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 advance thereof at mutually agreed times; (iii) reasonable assistance deliver documentation and cooperation to Buyer other information reasonably requested by sources of such Financing as promptly as reasonably practicable with respect to any auditor due diligence, (ex) 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 know-your-customer” ”, FINCEN and anti-money laundering rules and regulations, including the PATRIOT Act and (y) the requirements U.S. Treasury Department’s Office of 31 C.F.R. §1010.230Foreign Assets Control and the Foreign Corrupt Practices Act, in each case, to the extent such information is required pursuant to the applicable Financing; (hiv) facilitating deliver as promptly as reasonably practicable all financial information and assisting real property and other diligence materials related to VEREIT and its Subsidiaries customary or reasonably necessary for the completion of such Financing; (v) direct VEREIT’s independent auditors to cooperate with Financing that is a securities offering consistent with their customary practice, including requesting VEREIT’s independent accountants to prepare and deliver customary comfort letters (it being understood that such customary comfort letters shall include a SAS 100 review of any interim financial statements and “negative assurance” comfort covering any “stub” period) if customary for such Financing, in connection with any Financing to the applicable underwriters, arrangers, initial purchasers or placement agents thereof in each case, on customary terms and consistent with the customary practice of such independent accountants; (vi) assist with the preparation of pro forma financial information and pro forma financial statements solely with respect to VEREIT to the extent customary or reasonably necessary for the completion of the Financing, including, if applicable, of the type that would be required by Regulation S-X and Regulation S-K promulgated under the Securities Act for a public offering of securities of Realty Income and for Realty Income’s preparation of pro forma financial statements; (vii) assist in the preparation of customary projections, estimates and other forward looking financial information regarding the future performance of VEREIT to the extent customary or reasonably necessary for the completion of the Financing; and (viii) the execution and delivery of any such definitive financing documents, including certificates, credit agreements, indentures, notes, underwriting agreements, note purchase agreements, security documentationdealer manager agreements, solicitation agent agreements, authorization letters, guarantees, schedules, perfection certificates or legal opinions and other definitive documents relating to the Debt Financing relating to the Group Companiesdocuments, 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 as may be required reasonably necessary to deliver in connection with the Debt facilitate such Financing, in each case, solely case in form and substance reasonably satisfactory to the extent reasonable and customary for financings party executing such document; provided that any such documents referred to in this clause (viii) shall be effective no earlier than the Effective Time (other than any authorization letters that are required to be given in advance of such type, and (j) obtaining and providing documents time in order for the Financing to Buyer (including draft payoff letters) relating to be consummated on or after the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this AgreementEffective Time). The Company VEREIT hereby consents, on behalf of itself and the Group Companies, consents to the use of the its and its Subsidiaries’ logos of the Group Companies in connection with the Debt any Financing; provided that such logos are used solely in a manner that is not intended to, nor to or is reasonably likely to, to harm or disparage VEREIT or its Subsidiaries or the Company’s or any of its Affiliates’ reputation or goodwillgoodwill of such party or its Subsidiaries. Notwithstanding any other provision set forth herein or in any other agreement between Realty Income and VEREIT or its affiliates, the parties hereto agree that Realty Income may share with the sources of such Financing customary projections and other confidential information with respect to VEREIT (including information about VEREIT’s Subsidiaries) after giving effect to the Merger and the transactions contemplated hereby that the parties have cooperated in preparing, and that Realty Income, its Subsidiaries and such sources of Financing may share information about VEREIT and its Subsidiaries (notwithstanding anything to the contrary herein or in the Confidentiality Agreement) with potential sources of the Financing in connection with any marketing efforts in connection with the Financing, provided that the recipients of such information agree to customary confidentiality arrangements in form and substance reasonably acceptable to VEREIT.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Realty Income Corp), Agreement and Plan of Merger (VEREIT Operating Partnership, L.P.)
Financing Cooperation. 8.11.1. Buyer may determine(a) From the date hereof until the Closing, or the earlier termination of this Agreement pursuant to Section 8.01, the Company shall, and shall cause its Subsidiaries to, and shall use commercially reasonable efforts to cause its and their respective officers, employees, advisors and other Representatives to, use commercially reasonable efforts to provide such customary cooperation reasonably requested by Parent in its sole discretion, to obtain a timely manner in connection with the documentation and consummation of any debt financing to fund any portion of arranged by Parent or its Affiliates in connection with the Purchase Price transactions contemplated hereby (the “Debt Financing”); provided that , which shall include using commercially reasonable efforts to: (i) at reasonable times, upon reasonable advanced notice and at reasonable locations, cause appropriate members of the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and management team of 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 participate in a customary manner; provided further that, in no event shall the receipt reasonable number 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentationsmeetings, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection similar presentations to and with the Debt Financing Sources and rating agencies, in each case, to the extent reasonable usual and customary for debt 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 a type similar marketing documents and due diligence efforts for to the Debt Financing and (ii) customary authorization and representation letters, each as reasonably 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 connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents to furnish Parent and the inclusion of their audit report in respect of any Debt Financing Sources with the historical financial statements of the Company and its Subsidiaries and such other available financial information of the Company and its Subsidiaries reasonably requested by Parent in connection with the Debt Financing that is customarily required for the arrangement of debt financings similar to the Debt Financing, (iii) furnish Parent and the Debt Financing Sources with information regarding the Company and its Subsidiaries in any offering connection with the preparation of customary information memoranda, lender presentations, rating agency presentations and other similar documents relating and materials that are usual and customary for debt financings of a type similar to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer reasonably required in connection 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, (fiv) assist, to the extent reasonably assisting requested by Parent, in Buyer’s efforts to satisfy the conditions precedent set forth in any preparation of customary definitive document relating to financing documentation for the Debt Financing (including, to the extent satisfaction of such condition requires reasonably requested by Parent, any customary authorization letters that are reasonably satisfactory to the cooperation ofCompany, or is within the control of, the Group Companiesofficer’s certificates and schedules), (gv) delivering facilitate the pledging of collateral to Buyer the extent required by the Debt Financing Sources to be pledged on the Closing Date (including by providing reasonable cooperation in connection with the release of related Liens and termination of security interests) and (vi) provide, at least three (3) Business Days prior to the Closing Date, 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 regulationsApplicable Laws, including the USA PATRIOT Act and Act, that has been requested in writing at least ten Business Days prior to the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in Closing Date. The Company consents to the preparation and delivery reasonable use 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 logos 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 deliver Company or its Subsidiaries in connection with the Debt Financing, Financing in each case, solely to the extent reasonable a manner usual and customary for debt financings of such type, and (j) obtaining and providing documents a type similar 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 or reasonably likely to, harm or disparage the Company’s Company or its Subsidiaries or the reputation or goodwill of the Company or its Subsidiaries or any of its Affiliates’ reputation their respective products, services, offerings or goodwillintellectual property rights.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (DSP Group Inc /De/), Agreement and Plan of Merger (DSP Group Inc /De/)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) 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 The Company shall use reasonable best efforts to, and shall use its reasonable best efforts to provide, and to cause the Company its Subsidiaries and its and each of their respective Representatives toto provide, in each case at Buyer’s sole expenseto Parent and Purchaser, provide to Buyer such reasonable 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for Parent and Purchaser and that is necessary or customary, proper or advisable in connection with the completion arrangement of any loan transaction or capital markets debt financing (whether public or private) undertaken by Parent in contemplation of the Debt consummation of the Transactions (any such financing, the “Financing”), including reasonable cooperation, in each case to the extent reasonably requested: (bi) participating to provide, within a reasonable amount of time following such reasonable request, to Parent, Purchaser and their financing sources material financial and other pertinent information with respect to the Company and its Subsidiaries and the Transactions, including information and projections prepared by the Company relating to the Acquired Companies and the Transactions, all financial information regarding the Acquired Companies required in telephonic meetings and otherwise reasonably assisting connection with the preparation of appropriate the Finance Offering Documents and customary materials customary diligence documentation reasonably requested by persons in connection with the Financing; (ii) to cooperate with the marketing efforts of Parent, Purchaser and their financing sources for any of the Financing, including causing its Representatives to participate, during normal working hours and upon reasonable notice, in meetings, presentations, road shows, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection agencies, a reasonable number of times; (iii) to assist 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 memorandamaterials for rating agency presentations, lender and investor presentations, offering documents, offering information memoranda, road show presentations and similar documents (including the preparation of pro forma financial statements meeting the requirements of SEC Regulation S-X) necessary, proper or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required advisable in connection with the Debt FinancingFinancing (collectively, authorizing the distribution of information “Finance Offering Documents”); (iv) 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 assist Parent in obtaining consents of the United States federal Company’s auditors for use of their reports in any materials relating to the Financing and state securities laws if any Group Company were a public reporting company, customary “comfort letters” (d) using reasonable best efforts to cause including customary negative assurances and “bring-down” letters from the Company’s independent registered accounting firm accountants on customary terms); and (v) to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in 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 other 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 Act. Notwithstanding 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 typeforegoing, (i) cooperating with internal no obligation of the Company or its Subsidiaries under any certificate, document or instrument executed pursuant to the foregoing shall be effective until the Offer Acceptance Time (or such later time set forth in such certificate, document or instrument), and external counsel neither the Company nor its Subsidiaries nor any of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may their respective Representatives shall be required to deliver take any action under any such certificate, document or instrument that is not contingent upon the consummation of the Offer (including the entry into any agreement that is effective before consummation of the Offer) or that would be effective prior thereto or take any corporate actions prior to the Closing, (ii) nothing herein shall require cooperation to the extent that such cooperation would, in the good faith determination of the Company, interfere unreasonably with the business or operations of the Company or its Subsidiaries, (iii) neither the Company nor any of its Subsidiaries shall be required to waive or amend any terms of this Agreement, (iv) neither the Company nor any of its Subsidiaries shall be required to take any action that will conflict with or violate its organizational documents or any applicable Legal Requirement, and (v) neither the Company nor any of its Subsidiaries shall be required to issue any offering or information document (other than as required to comply with Company’s obligations pursuant to this Section 6.14). None of the Company or any of its Subsidiaries shall be required to take any action that would subject it to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment (other than reasonable out-of-pocket costs that will be reimbursed by Parent pursuant to this Section 6.14) or incur any other liability or provide or agree to provide any indemnity in connection with the Debt Financing, in each case, solely Financing or any of the foregoing that would be effective prior 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 AgreementClosing. The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the logos of the Group Companies Company and its Subsidiaries in connection with the Debt syndication or marketing of the Financing; provided that such logos are used solely in a manner that is reasonable and customary in connection with a Financing, and in any event, not intended to, nor is reasonably likely to, to harm or disparage the Company’s , its Subsidiaries or any of its Affiliates’ reputation or goodwilltheir marks.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Gilead Sciences Inc), Agreement and Plan of Merger (Kite Pharma, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine(a) TransGlobe agrees to use commercially reasonable efforts to provide, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “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 cause each of 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 each of their respective Representatives toto provide, 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies VAALCO in connection with the borrowing or an issuance of debt by VAALCO, AcquireCo and/or any liability management transaction (including, without limitation, any exchange offers, consent solicitations or tender offers) with respect to debt existing on the date hereof of TransGlobe or its Subsidiaries (collectively, a “Debt Financing to the extent Financing”), including, without limitation to, upon reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of notice: (i) customary bank information memorandaprovide assistance with any discussions of and/or furnish, lender as applicable, such business, financial statements, pro forma financials, projections, management discussion and investor presentations, offering documents, offering or private placement memoranda analysis and other similar marketing documents customary financial data and due information (including diligence efforts for the Debt Financing and (iimaterials) customary authorization and representation letters, each as reasonably 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 connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing direct their respective independent accountants to provide 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 in connection 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 comfort letters and factual information regarding any legal opinion that such counsel may be required to deliver consents, (iii) obtain customary payoff letters, releases of liens and other instruments of termination or discharge reasonably requested by VAALCO in connection with the Debt Financing, in each case, solely to repayment of debt of TransGlobe and its Subsidiaries (provided that the extent reasonable and customary for financings effectiveness of any such type, arrangements shall be contingent on the completion of the Arrangement) and (jiv) obtaining authorize and providing documents to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness facilitate discussions, meetings and the release of related guarantees and Liens in accordance other engagement by VAALCO, its Subsidiaries or affiliates with the terms current lenders, noteholders or other providers of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, existing indebtedness 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 TransGlobe or any of its Affiliates’ reputation Subsidiaries for the purpose of obtaining Debt Financing, including by necessary or goodwillappropriate waivers of the Confidentiality Agreement to permit such activities. VAALCO (or, at VAALCO’s direction, AcquireCo) shall reimburse TransGlobe for all reasonable out-of-pocket costs or expenses incurred by TransGlobe and its Subsidiaries in connection with cooperation provided for in this Section 5.13 to the extent the information requested was not otherwise prepared or available in the ordinary course of business.
Appears in 2 contracts
Samples: Arrangement Agreement (Transglobe Energy Corp), Arrangement Agreement (Vaalco Energy Inc /De/)
Financing Cooperation. 8.11.1. Buyer may determine(a) Prior to the Merger Closing Date, in the Company shall, and shall cause its sole discretionsubsidiaries and Affiliated Entities to, use commercially reasonable efforts to cause their respective directors, officers, employees, consultants and advisors, including legal and accounting advisors, to obtain debt financing provide to fund any portion each of the Purchase Price (the “Debt Financing”Parent and Merger Sub, subject to reimbursement by Parent and/or Merger Sub pursuant to Section 5.21(c); provided that the Buyer shall, promptly after such Debt Financing is obtained all cooperation (x) provide Seller and the Company with written notice that such Debt Financing has been obtained reasonably requested by Parent and/or Merger Sub and (y) deliver as is necessary and customary to assist Parent and Merger Sub in connection with securing financing in an amount sufficient to permit Parent and Merger Sub to fund (or cause A) the aggregate amount of Merger Consideration required to be deliveredpaid pursuant to Article II, (B) to Seller all associated costs and expenses of the Merger (including any repayment or refinancing of indebtedness of the Company true, correct required in connection therewith) payable by Parent or Merger Sub and complete copies (C) all other amounts required to be paid in connection with the consummation 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 by Parent or Merger Sub (the “Financing”), including to: (i) promptly provide each of Parent and Merger Sub and its financing sources and their respective agents with the Required Information (as defined below); (ii) assist Parent and/or Merger Sub and use commercially reasonable efforts to perform cause its obligations hereunder. Prior independent auditors to assist with Parent and/or Merger Sub’s preparation of pro forma financial statements customarily included in offering documents for high yield debt securities (or as otherwise reasonably required by each of Parent and Merger Sub’s financing sources and their respective agents); (iii) prior to and during the ClosingMarketing Period (as defined below), subject to Section 8.11.2participate in a reasonable number of meetings, the Company shall use presentations, road shows, drafting sessions, due diligence sessions (including using commercially reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries Company’s and its subsidiaries’ independent auditors to participate therein and to otherwise cooperate with the reasonable requests of each of Parent and Merger Sub), sessions with prospective lenders, including direct contact between senior management and the other representatives of the Company, on the one hand, and the actual and potential lenders, on the other hand (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders and purchasers with respect to, the Financing), and sessions with rating agencies, in each case, at reasonable times and locations mutually agreed; (iv) in advance of the Marketing Period, assist with the preparation of materials for rating agency and investor presentations (including “roadshow” or investor meeting slides), registration statements, bank information memoranda, offering memorandum, prospectuses, private placement memoranda (including under Rule 144A under the Securities Act), confidential information memoranda, marketing materials and similar documents required in connection with the Financing; (v) provide appropriate representations in connection with the preparation of financial statements and other financial data of the Company and its subsidiaries and cause the Company’s independent auditors to provide reasonable and customary assistance and cooperation in connection with the Financing, including, (A) rendering customary “comfort letters” under AU Section 634 for a public offering or a Rule 144A placement of securities with respect to financial information regarding the Company’s subsidiaries contained in the offering materials relating to the Financing, including providing customary representations to such accountants and furnishing, prior to the commencement of the Marketing Period, drafts of such comfort letters (which shall provide “negative assurance” comfort) which such accountants are prepared to issue upon completion of customary procedures, and (B) providing consents for use of their reports in any filings required to be made by the Parent and/or Merger Sub pursuant to the Securities Act or the Exchange Act; (vi) cooperate with the marketing efforts of each of Parent and Merger Sub 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 financing sources for any portion of the Debt Financing, if any where financial information of the Company and its subsidiaries and Affiliated Entities is included in such efforts; (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere vii) facilitate the obtaining of guarantees, pledging of collateral in connection with the operations of the Group Companies)Financing, including as promptly as reasonably practicalexecuting and delivering any customary guarantee, (a) furnishing Buyer with the Required Financial Information pledge and security documents, currency or interest hedging arrangements or other pertinent information regarding the Group Companies definitive financing documents or other customary certificates, legal opinions or documents as may be reasonably requested by Buyer for the completion Parent and/or Merger Sub (including a certificate of the Debt Financingchief financial officer with respect to solvency matters as of the Merger Closing Date on a pro forma basis) to facilitate any guarantee, obtaining and perfection of security interests in collateral from and after the Merger Closing Date (bprovided that any obligations contained in such documents shall be effective no earlier than as of the Effective Time); (viii) participating as applicable, cooperate in telephonic meetings connection with any payoff and otherwise reasonably assisting with release of existing indebtedness of the preparation Company and its subsidiaries and cause the release of appropriate all liens on the equity interests and customary materials customary presentations, due diligence sessions assets of the Company and its subsidiaries related thereto (including accounting due diligence sessionsobtaining customary payoff letters, lien terminations and other instruments of discharge) (in each case subject to the occurrence of the Effective Time); (ix) cooperate with Parent to obtain corporate and sessions with rating agencies facilities ratings 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 (ii) 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 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 commencement of the Marketing Period, in each case, from each of Standard & Poor’s Ratings Services and Xxxxx’x Investors Service, Inc., (x) provide to each of Parent and Merger Sub and their respective financing sources all such documentation and other 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 Act; (xi) execute and deliver (or assist in Parent and/or Merger Sub obtaining from legal counsel (including local counsel) to the requirements of 31 C.F.R. §1010.230Company and its subsidiaries and their advisors) customary certificates, (h) facilitating and assisting in the preparation and delivery of any legal opinions, credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates guarantees or other definitive documents relating and instruments as may be reasonably requested by Parent and/or Merger Sub, as are in each such case, necessary and customary in connection with the Financing; (xii) take corporate action (subject to the Debt Financing relating occurrence of the Merger Closing Date) reasonably necessary to permit the Group Companies, and their respective businesses to be included in completion of the definitive documents relating to the Debt Financing, and assist with ; (xiii) facilitate the execution and delivery of the same, in each case, solely definitive documentation related to the extent reasonable Financing as may be reasonably requested by each of Parent and/or Merger Sub; (xiv) provide authorization letters to the lenders authorizing the distribution of information to prospective lenders or investors and customary for financings containing a representation to the lenders that such information does not contain a material misstatement or omission and that the public side versions of such typedocuments, if any, do not include material non-public information about the Company or its subsidiaries or securities; (ixv) cooperating with internal and external counsel of Buyer use commercially reasonable efforts to involve in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver syndication efforts in connection with the Debt FinancingFinancing the Company’s and its subsidiaries’ existing lending and investment banking relationships; and (xvi) upon request, in each case, solely endeavor to update any Required Information provided to Parent and/or Merger Sub as may be necessary for such Required Information to remain Compliant (as defined below); provided that nothing herein shall require the Company or any of its subsidiaries or the Affiliated Entities to provide such cooperation to the extent reasonable and customary for financings it would interfere unreasonably with the business or operations of such type, and (j) obtaining and providing documents to Buyer the Company (including draft payoff letters) relating its subsidiaries); and provided further that the Company Board and officers of the Company and the board of directors and officers of its subsidiaries and Affiliated Entities shall not be required, prior 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 CompaniesMerger Closing Date, to adopt resolutions approving the use of the logos of the Group Companies agreements, documents and instruments in connection with the Debt Financing or pursuant to which any portion of the Financing is obtained, and no subsidiaries of the Company nor any officer or director thereof shall be required to execute, prior to the Merger Closing Date, any documents contemplated by the definitive documentation related to the Financing or any other certificate, document, instrument or agreement that is effective prior to the Merger Closing Date or agree to any change or modification to any existing certificate, document, instrument or agreement that is effective prior to the Merger Closing Date. None of the Company nor any of its subsidiaries or Affiliated Entities shall be required to take any action that would subject it to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment (other than reasonable out-of-pocket costs) or incur any other liability or provide or agree to provide any indemnity, guarantee or pledge in connection with the Financing or any of the foregoing prior to the Merger Closing Date (other than to the extent such liabilities arise from the breach of this Agreement by the Company). The subsidiaries and Affiliated Entities of the Company hereby consent to the reasonable use of the Company’s and its subsidiaries’ and Affiliated Entities’ logos in connection with the arranging and consummation of the Financing; provided that such logos are used solely in a manner that is not intended to, nor is to or reasonably likely to, to harm or disparage the Company’s business of the subsidiaries or Affiliated Entities or their marks. Parent acknowledges that its obligations under this Agreement are not contingent or conditioned in any of its Affiliates’ reputation or goodwillmanner on obtaining any financing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (IPC Healthcare, Inc.), Agreement and Plan of Merger (Team Health Holdings Inc.)
Financing Cooperation. 8.11.1. Buyer may determine(a) Subject to Section 6.03(a), in prior to the Offer Closing, the Company shall use its sole discretionreasonable best efforts to cooperate, and to cause its Subsidiaries, and its and their respective Representatives, to obtain debt cooperate, with Parent and Merger Sub in connection with Parent and Merger Sub obtaining financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company in connection 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 including, at Parent’s request (i) furnishing Parent 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 Merger Sub 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 financing sources with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information financial and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion (including bank and bond information memoranda, syndication materials, offering and other similar documents) customarily utilized in financing transactions of the Debt Financingkind contemplated hereby, (bii) participating in telephonic each case, upon reasonable notice, making management of the Company (including some members of the financial staff) available to participate in a reasonable number of meetings and otherwise reasonably assisting (including customary one-on-one meetings with the preparation of appropriate parties acting as lead arrangers or agents for, and customary materials customary prospective lenders and purchasers of, any such financing), presentations, road shows, due diligence sessions, drafting sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such typefinancing, (ciii) reasonably assisting in with the preparation of (i) customary materials for rating agency presentations and 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 (ii) customary authorization and representation letters, each as required customarily prepared 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 companyfinancing, (div) using reasonable best efforts to cause facilitate accountant’s comfort letters and legal opinions reasonably requested by Parent, (v) reasonably facilitating the Company’s independent registered accounting firm to provide customary assistancepledging of collateral, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in 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 all actions reasonably necessary to permit establish bank and other accounts and blocked account agreements in connection with the consummation foregoing and executing and delivering customary pledge and security documents or other definitive financing documents and other certificates and documents as may be reasonably requested by Parent that are consistent with the terms of this Agreement or otherwise facilitating the pledging of collateral from and funding of after the Debt FinancingClosing as may be reasonably requested by Parent; provided, that any obligations contained in all such agreements and documents shall be effective no earlier than the Effective Time, (fvi) reasonably assisting in Buyer’s efforts to satisfy promptly furnishing all documentation and other information about the conditions precedent set forth in any definitive document relating Company and its Subsidiaries required by Governmental Entities with respect 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 financing under applicable “know your customer” and anti-money laundering rules and regulations, regulations including without limitation the USA PATRIOT Act and (vii) taking all corporate actions, subject to the requirements occurrence of 31 C.F.R. §1010.230the Closing, (h) facilitating and assisting in reasonably requested to permit the preparation and delivery consummation of any such financing and to permit the proceeds thereof to be made available to the Company, including entering into one or more credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates indentures or other definitive documents relating instruments on terms reasonably satisfactory to Parent in connection with therewith as of or immediately after 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 Offer Closing to the extent direct borrowings or debt incurrence by the Company is contemplated by any such financing; provided that nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of the Company or its Subsidiaries; provided, further, that neither 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 that would be effective prior to the Offer Closing. None of the Company nor any of its Subsidiaries shall be required to take any action that would subject it to actual or potential liability or to bear any cost or expense or to pay any commitment or other similar fee (other than reasonable and customary for financings of such type, (iout-of-pocket costs) 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 deliver in connection with financing or any of the Debt Financing, in each case, solely foregoing prior 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 AgreementOffer Closing. The Company hereby consents, on behalf of itself and the Group Companies, consents to the reasonable use of the Company’s and its Subsidiaries’ logos of the Group Companies in connection with the Debt Financing; any such financing, provided that such logos are used solely in a manner that is not intended to, nor is to or reasonably likely to, to harm or disparage the Company’s Company or any of its Affiliates’ Subsidiaries or the reputation or goodwillgoodwill of the Company or any of its Subsidiaries or any of their logos and on such other customary terms and conditions as the Company shall reasonably impose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Bishop Infrastructure III Acquisition Company, Inc.), Agreement and Plan of Merger (Westway Group, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine(a) At the reasonable request of Moon, in its sole discretionComet shall provide, to obtain debt financing to fund any portion of the Purchase Price (the “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 toefforts, consistent with the terms of and the obligations of each Party under this Agreement, to cause its Subsidiaries, and shall use reasonable best efforts to cause the Company Subsidiaries and each of 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 operations of the Group Companies)Representatives, including as promptly as reasonably practicallegal and accounting Representatives, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and to provide all cooperation necessary and/or customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing arrangements of financings such as the Financings as is reasonably requested by Moon in connection with the Financings. In performing its respective foregoing obligations under this Section 7.21, each of Moon, Moon’s Subsidiaries, Comet and Comet’s Subsidiaries shall use its reasonable best efforts to, as applicable, (i) provide reasonably required information relating to that Party and its Subsidiaries to the extent reasonable and customary for financings of such typeparties providing the Financings, (cii) reasonably assisting participate in meetings, drafting sessions and due diligence sessions in connection with the Financings, (iii) assist in the preparation of (iA) any offering documents for any portion of the Financings, and (B) materials for rating agency presentations, including execution and delivery of customary representation letters in connection with bank information memoranda, lender (iv) reasonably cooperate with the marketing efforts for any portion of the Financings, (v) execute and investor presentationsdeliver (or use reasonable best efforts to obtain from its advisors), offering documentsand cause its Subsidiaries to execute and deliver (or obtain from its advisors), offering customary certificates, accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financings), customary surveys, title insurance or private placement memoranda other documents and instruments relating to guarantees, the pledge of collateral and other similar marketing documents and due diligence efforts for matters ancillary to the Debt Financing and (ii) customary authorization and representation letters, each Financings as required may be reasonably necessary 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 companyFinancings, (dvi) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistanceassist in obtaining such consents, including (i) providing customary comfort letters (including “negative assurance comfort” waivers, estoppels, approvals, authorizations and “change period comfort”) instruments that may be reasonably requested in connection with the Financing and any capital markets transaction comprising a part collateral arrangements therefor, including customary payoff letters, lien releases, instruments of the Debt Financingtermination or discharge, appraisals, surveys, landlord consents, waivers and access agreements, (iivii) 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 provide all such documentation and other information about such Person as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent any Financing Source and required by U.S. regulatory authorities under applicable “know your customer” and anti-money money-laundering rules and regulations, regulations including the PATRIOT Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act and the requirements of 31 C.F.R. §1010.2302001, (hviii) facilitating and assisting in the preparation and delivery of any enter into one or more secured or unsecured credit or other agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or related guarantees and other definitive documents relating ancillary agreements on terms satisfactory to the Debt Financing relating to the Group Companies, Moon 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 deliver are reasonably necessary in connection with the Debt FinancingFinancings immediately prior to the Effective Time provided the same are not effective until the Effective Time, (ix) as promptly as practicable, furnish the sources for the Financings with all financial and other information regarding Moon, Comet and their respective Subsidiaries, as applicable, as may be reasonably necessary of a type generally used in connection with a syndicated bank financing as well as a registered public offering or an offering pursuant to Rule 144A of the Securities Act in each casecase by Moon, solely (x) take all actions reasonably necessary in connection with the termination at the Closing of all commitments in respect of the Existing Moon Debt and the Existing Comet Debt, as applicable, and any other Debt in each case to the extent reasonable and customary for financings of such typecontemplated by or required in connection with the Financings (collectively, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the “Existing Debt”), the repayment in full on the Closing Date of all obligations in respect of the Indebtedness Existing Debt, and the release of related Liens securing such Existing Debt and guarantees in connection therewith, and Liens in accordance (xi) take all corporate actions, subject to the occurrence of the Closing, reasonably necessary to permit the consummation of the Financings and the direct borrowing or incurrence of all of the proceeds of the Financings by Moon concurrently with the terms Effective Time; provided, however, none of Comet or its Affiliates shall be required to take or permit the taking of any action pursuant to this Agreement. The Company hereby consentsSection 7.21 that would (A) require Comet, on behalf its Affiliates or any Persons who are directors or officers of itself and Comet or any of its Affiliates to pass resolutions or consents to approve or authorize the Group Companiesexecution of the Financings or execute or deliver any agreement, certificate, opinion, document or instrument that is effective prior to the use of the logos of the Group Companies Effective Time, (B) require Comet or its Subsidiaries to pay any commitment or other similar fee or incur any liability in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended toFinancings prior to the Effective Time, nor is reasonably likely to, harm or disparage (C) conflict with the Company’s organizational documents of Comet or any of its Affiliates’ reputation Affiliates or goodwillany Laws, or (D) reasonably be expected to result in a violation or breach of, or a default (with or without notice, lapse of time, or both) under, any Contract to which Comet or any of its Affiliates is a party, including this Agreement. Notwithstanding anything in this Section 7.21 to the contrary, neither Comet, on the one hand, nor Moon, on the other hand, nor any of their respective Subsidiaries, shall be required to provide any information which it reasonably believes it may not provide by reason of any applicable Law (including with respect to privacy of employees), which constitutes information protected by attorney/client privilege, or which it is required to keep confidential by reason of contract or agreement with third parties.
Appears in 2 contracts
Samples: Business Combination Agreement (Chicago Bridge & Iron Co N V), Business Combination Agreement (McDermott International Inc)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) 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 8.11.2Closing Date, the Company shall use reasonable best efforts toprovide, and shall use its commercially reasonable best efforts to cause the Company Subsidiaries its Affiliates and its and their respective Representatives toits Affiliates’ representatives to provide, in each case at Buyer’s sole expense, provide to Buyer the Parent 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion Parent with respect to the arrangement of (i) Debt Financing and/or Replacement Financing and (ii) “Replacement Financing” under Section 7.22(a) of the Debt FinancingParent/Condor Merger Agreement; provided that, in each case, such requested cooperation does not unreasonably interfere with operations of the Company and its assets and that any information requested by the Parent is reasonably available to the Company or any of its Affiliates or its or their Representatives. Such cooperation shall include, without limitation, using commercially reasonable efforts to (bi) participating provide historical financial information, lease operating statements and reserve engineering reports and other similar information prepared in telephonic meetings the ordinary course of business relating to the Company’s assets and otherwise reasonably assisting all updates thereto and provide reasonable assistance to the Parent in connection with the preparation of appropriate pro forma financial information to be included in any marketing materials to be used in connection with any Debt Financing and/or Replacement Financing, (ii) provide information reasonably requested by the Parent for its preparation of materials for bank information memoranda, offering prospectuses and customary materials customary presentationsdocuments, due diligence sessions (including accounting due diligence sessions) marketing materials, rating agency presentations and sessions with rating agencies similar documents required 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 (ii) customary authorization and representation letters, each as required in connection with the Debt and/or Replacement 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 identify any information about any Group Company or any securities of any Group Company contained therein that would constitute material material, non-public information within with respect to the meaning Company or its securities or any of the its assets for purposes of foreign, United States federal and or state securities laws if any Group Company were a public reporting companylaws, (diii) using cause the independent accountants of the Company to provide reasonable best efforts assistance to cause the Parent, consistent with their professional practice, including by participating in accounting due diligence sessions (if reasonably requested by the Debt Financing Sources and/or sources of the Replacement Financing), to provide their consent to use of their audit reports relating to the Company’s independent registered accounting firm assets (if applicable) on customary terms and to provide customary assistance, including (i) providing deliver a customary comfort letters letter covering items reasonably requested by the Debt Financing Sources (including “negative assurance comfort” and “change period comfort”and/or sources providing the Replacement Financing) in connection with any capital markets transaction comprising offering memorandum or prospectus relating to a part of the Debt Financing and/or Replacement Financing, (iiiv) providing customary consents reasonably cooperate in satisfying the covenants and conditions precedent 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 and/or Replacement Financing to the extent satisfaction of such condition requires covenants and conditions require the cooperation ofof the Company, its Affiliates or is within the control of, the Group Companiesits or their representatives, (gv) delivering to Buyer at least three (3) Business Days prior to the Closing furnish all such documentation and other 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 governmental authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT U.S.A. Patriot Act of 2001 and (vi) reasonably facilitate the requirements Parent’s preparation of 31 C.F.R. §1010.230the documentation necessary to pledge and mortgage the Company’s assets that will be collateral under the Debt Financing and/or Replacement Financing, (h) facilitating and assisting including, without limitation, to reasonably assist the Parent in the its preparation and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents disclosure schedules 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 Company’s assets in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver in connection with the Debt Financing and/or Replacement 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 Affiliates’ reputation or goodwill.
Appears in 2 contracts
Samples: The Agreement and Plan of Merger (Extraction Oil & Gas, Inc.), The Agreement and Plan of Merger (Bonanza Creek Energy, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “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 8.11.2Effective Time, the Company shall use reasonable best efforts toPartnership Entities shall, and shall use reasonable best efforts to cause the Company their respective Subsidiaries and its and their respective Representatives to, in each case at BuyerParent’s sole cost and expense, provide to Buyer such all cooperation reasonably requested by Buyer that is reasonably necessary necessary, proper or advisable in arranging, obtaining and syndicating the Debt Financing, if connection with any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere financing by Parent or any of its Subsidiaries in connection with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies Transactions as may be reasonably requested by Buyer for Parent or its Representatives. Without limiting the completion generality of the Debt Financingforegoing, the Partnership Entities shall, and shall cause their respective Subsidiaries and use commercially reasonable efforts to cause their respective Representatives to, (bi) participating furnish, as promptly as practicable, the report of the Partnership’s auditor on the most recently available audited consolidated financial statements of the Partnership and its Subsidiaries and use its commercially reasonable efforts to obtain the consent of such auditor to the use of such report in telephonic meetings accordance with normal custom and otherwise reasonably assisting with the preparation of appropriate practice, and use commercially reasonable efforts to cause such auditor to provide customary materials customary presentations, due diligence sessions comfort letters (including accounting due diligence sessionsproviding “negative assurance” comfort) and sessions with rating agencies drafts thereof to the underwriters, administrative agent, lenders, initial purchasers or placement agents, as applicable, in connection with such financing by Parent; (ii) use commercially reasonable efforts to furnish, as promptly as practicable, financial statements and other financial data of the Debt Financing Partnership as would be required by Regulation S-X and Regulation S-K promulgated under the Securities Act for a registered public offering to the extent consummate any offering(s) of securities contemplated by such financing; (iii) provide reasonable and customary for financings of such type, (c) reasonably assisting assistance in the preparation of (i) customary bank one or more confidential information memoranda, lender and investor presentationsprospectuses, offering documentsmemoranda, offering or private placement memoranda and other similar marketing documents and syndication materials (including the provision of authorization letters and a representation with respect to the presence or absence of material non-public information) reasonably requested by Parent, including by making available, at reasonable times and on reasonable advance notice, employees and advisors of the Partnership Entities; (iv) in a reasonable number of meetings, lender presentations, due diligence efforts for the Debt Financing sessions, drafting sessions and road shows, in each case, upon reasonable advance notice and at mutually agreed times; (iiv) customary authorization and representation letters, each as required assisting Parent in connection with the Debt Financing, authorizing the distribution preparation and registration of information to prospective lenders (but not executing) any pledge and containing a representation that the public side of such security documents, if anycurrency or interest hedging arrangements, do not include any information about any Group Company other definitive financing documents, or any securities documents as may be reasonably requested by Parent or the Financing Sources or otherwise reasonably facilitating the pledging 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”) collateral in connection with any capital markets transaction comprising a part the financing of the Debt Financing, Transactions (iiprovided that such documents will not take effect until the Effective Time); (vi) using commercially reasonable efforts to ensure that any syndication efforts benefit from existing lending and investment banking relationships; and (vii) providing all customary consents to documentation and other information about the inclusion of Partnership, the Partnership GP and their audit report respective Subsidiaries requested by Parent or the Financing Sources in respect of any financial statements connection with the financing of the Company Transactions 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” sanctions and anti-money money-laundering rules and regulations; provided that (x) none of the Partnership or any of its Subsidiaries shall be required to pay any commitment or other fee 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, including 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 PATRIOT Act and the requirements of 31 C.F.R. §1010.230Effective Time, (hy) facilitating and assisting in no obligations of the preparation and delivery Partnership or any of its Subsidiaries under any credit agreementscertificate, indenturesopinion, notescontract, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates indenture or other definitive documents relating document or instrument delivered pursuant to this Section 7.15 shall be effective until the Effective Time, and none of the Partnership or any of its Subsidiaries shall be required to take any action pursuant to this Section 7.15 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 Debt Financing relating Effective Time and (z) none of the Partnership or its senior officers shall be required to engage in any action that would interfere unreasonably with the Group Companiesbusiness of the Partnership and its Subsidiaries. Parent shall indemnify and hold harmless the Partnership and its Subsidiaries, Partnership GP and their respective businesses to be included in the definitive documents relating to the Debt Financing, Representatives from and assist with the execution against any 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 deliver all losses or damages suffered or incurred by them in connection with the Debt Financing, in each case, solely to the extent reasonable and customary for financings arrangement of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment any financing by Parent or any 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 its Subsidiaries in connection with the Debt Financing; provided that Transactions and any information utilized in connection therewith except (A) with respect to information supplied by the Partnership, its Subsidiaries and Representatives specifically for inclusion or incorporation by reference therein and/or (B) to the extent such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage losses and damages arise from the Companywillful misconduct of the Partnership’s or any of its AffiliatesSubsidiaries’ reputation or goodwillRepresentatives.
Appears in 2 contracts
Samples: Purchase Agreement and Plan of Merger, Purchase Agreement and Plan of Merger (LRR Energy, L.P.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) 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 ClosingClosing Date, subject FH shall cause FX and its Subsidiaries and their respective Representatives to Section 8.11.2provide such reasonable cooperation in connection with any financing by XC or any of its Subsidiaries in connection with the Transactions as may be reasonably requested by XC or its Representatives. Without limiting the generality of the foregoing, the Company FH shall cause FX and its Subsidiaries and their respective Representatives to, upon request, (i) prepare and furnish all financial and other pertinent information regarding FX and its Subsidiaries reasonably requested by XC (including such financial statements, schedules or other financial data relating to FX and its Subsidiaries reasonably requested by XC as may be reasonably necessary to consummate any such financing, including any pro forma financial statements or other information determined by XC to be legally required or customary in connection with any such financing); (ii) use its reasonable best efforts to, to obtain the consent of its auditor to the use of such auditor’s reports with respect to the financial statements of FX and shall its Subsidiaries in accordance with normal custom and practice and use reasonable best efforts to cause such auditor to provide customary comfort letters to the Company Subsidiaries underwriters, initial purchasers or placement agents, as applicable, in connection with any such financing; (iii) provide direct contact between (x) senior management and advisors, including auditors, of FX and (y) the proposed lenders, underwriters, initial purchasers or placement agents, as applicable, and/or XC’s auditors in connection with, the financing, at reasonable times and upon reasonable advance notice; (iv) make available the employees and advisors of FX and its Subsidiaries to provide reasonable assistance with XC’s preparation of business projections, financing documents and their respective Representatives to, offer materials; (v) obtain the cooperation and assistance of counsel to FX and its Subsidiaries 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information providing customary legal opinions and other pertinent information regarding the Group Companies as 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 reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing financing or necessary or desirable to permit XC to fulfill conditions or obligations under the extent reasonable financing documents, provided that such agreements entered into shall be conditioned upon, and customary for financings of such typeshall not take effect until, the RA Closing; (cvii) reasonably assisting assist in the preparation of (i) customary bank one or more confidential information memoranda, lender and investor presentationsprospectuses, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence syndication materials reasonably requested by XC; (viii) use commercially reasonable efforts to ensure that the syndication efforts benefit materially from the existing banking relationships of FH, FX and their respective Subsidiaries; (ix) permit XC’s reasonable use of FX’s and its Subsidiaries’ logos for the Debt Financing syndication and underwriting, as applicable, of financing (iisubject to advance review of and consultation with respect to such use); (x) customary authorization participate in meetings and representation letters, each as required in connection presentations with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that investors, as applicable (including the public side participation in such meetings of such documentsFX’s senior management); (xi) use commercially reasonable efforts to assist in procuring any necessary rating agency ratings or approvals; (xii) not commence or effect any offering, if any, do not include any information about any Group Company placement or any securities arrangement of any Group Company that would constitute material non-public information within debt securities or bank financing competing with the meaning proposed financing (excluding, for the avoidance of doubt, the United States federal RA Loan (and state securities laws if not permit any Group Company were a public reporting companysuch offering, (d) using reasonable best efforts placement or arrangements 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 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 occur on its behalf); and (iiixiii) reasonable assistance furnish XC and cooperation to Buyer any lenders involved with such financing with all documentation and other information required 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 financing under applicable “know your customer” and anti-money laundering rules and regulations. In addition, including the PATRIOT Act FH shall, 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, shall cause its Subsidiaries and their respective businesses to be included in the definitive documents relating to the Debt FinancingRepresentatives to, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such typeupon request, (i) cooperating use commercially reasonable efforts to ensure that the syndication efforts with internal respect to such financing benefit materially from the existing banking relationships of FH and external counsel its Subsidiaries and (ii) not commence or effect any offering, placement or arrangement of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver in connection debt securities or bank financing competing with the Debt Financingproposed financing (excluding, in each casefor the avoidance of doubt, solely the RA Loan (and not permit any such offering, placement or arrangements 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, occur 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 Affiliates’ reputation or goodwillbehalf).
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion (a) From and after the date of the Purchase Price (the “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 prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts to, and shall use its reasonable best efforts to provide, and to cause the Company its Subsidiaries and its and to use their respective Representatives toreasonable best efforts to provide, to Parent, in each case at BuyerParent’s sole expensecost and expense (other than in respect of the preparation of any historical financial information), provide to Buyer such cooperation reasonably requested as is customary for the financings of the type contemplated by Buyer that is reasonably necessary the Debt Commitment Letter (including, solely for purposes of this Section 5.15, one or more offerings or private placements of non-convertible debt securities to be issued or incurred in arranging, obtaining and syndicating lieu of any portion of the debt financing contemplated by the Debt Commitment Letter (including any flex provisions therein)) (collectively with the Debt Financing, if any the “Available Financing”) that is reasonably requested by Parent in connection with the arrangement of the Available Financing, including using reasonable best efforts to: (provided that such requested cooperation is consistent i) reasonably cooperate with applicable Laws the Debt Financing Sources’ due diligence, to the extent customary and does not unreasonably interfere interfering with the business and operations of the Group Companies), including as promptly as reasonably practical, Company and its Subsidiaries; (aii) furnishing Buyer with the Required Financial Information upon reasonable advance notice and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion during normal business hours of the Debt FinancingCompany and its Subsidiaries, (b) participating cause the appropriate senior officers of the Company and its Subsidiaries to participate in telephonic meetings and otherwise reasonably assisting with the preparation a reasonable number of appropriate and customary materials customary presentationslender meetings, road shows, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Available Financing at locations and times to be mutually agreed; (iii)(I) provide such financial and other pertinent information regarding the extent Company and its Subsidiaries as may be reasonably requested by Parent and reasonably assist with the marketing efforts of Parent for all or any portion of the Available Financing, including reasonable and customary for financings of such type, (c) reasonably assisting in assistance with the preparation of (i) appropriate and customary materials for rating agency presentations, prospectuses, bank information memoranda, lender and investor presentationsoffering memoranda, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as customarily required in connection with obtaining financing of the type contemplated by the Debt FinancingCommitment Letter (including any offering of non-convertible debt securities or private placement of non-convertible debt securities pursuant to Rule 144A under the Securities Act); provided that (x) the Company’s and its Subsidiaries’ obligation to provide information for such materials shall be limited to information about the Company and its Subsidiaries and (y) other than with respect to the Required Financial Information, the Company and its Subsidiaries shall have no obligation to provide any financial or other information that is not reasonably available to the Company and its Subsidiaries, and (II) provide customary authorization letters to the Debt Financing Sources as contemplated by the Debt Commitment Letter authorizing the distribution of information relating to the Company and its Subsidiaries to prospective lenders and containing a representation (provided that such customary authorization letters (or the public side of prospectuses, bank information memoranda, offering memoranda or private placement memoranda in which such documents, if any, do not letters are included) shall include any information about any Group Company or any securities of any Group Company language 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 exculpates the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” its Subsidiaries and “change period comfort”) their respective Representatives and Affiliates from any liability in connection with any capital markets transaction comprising a part the use or misuse by the recipients thereof 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 information set forth in any such prospectuses, bank information memoranda, offering documents relating memoranda or private placement memoranda or similar memoranda or report distributed in connection therewith); (iv) furnish 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 Sources at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Buyer Date (to the extent the Company receives a written request from Parent at least ten (10) Business Days prior to the Closing Date) all documentation and other information relating to the extent Company and its Subsidiaries required by U.S. regulatory authorities under applicable “know your customer,” beneficial ownership and anti-money laundering rules and regulations, including the PATRIOT Act Act, to the extent required by the Debt Commitment Letter; (v) request that the Company’s independent auditors provide consent for use of their audit reports relating to the financial statements of the Company in any materials relating to the Available Financing as necessary and customary for financings similar to the requirements Available Financing and use commercially reasonable efforts to provide any customary information requested by such accounting firm to enable it to comply with such request; (vi) take such corporate actions as shall be reasonably requested by Parent (which actions shall not be effective prior to the Closing) by Persons that shall remain officers or directors of 31 C.F.R. §1010.230the Company and its Subsidiaries after the Closing to authorize and permit the consummation of the Available Financing (including (subject to and contingent upon the Closing) the Company and its Subsidiaries executing agreements to pledge, grant security interests in, and otherwise grant liens on, the assets of the Company and its Subsidiaries); (hvii) facilitating execute and assisting deliver a customary certificate of the chief financial officer (or other comparable officer) of the Company and its Subsidiaries in customary form with respect to financial information constituting Required Financial Information that is included in the preparation offering materials used in connection with the offer and sale of notes, bonds or other securities as reasonably requested by the Debt Financing Sources; and (viii) request and facilitate the independent auditors of the Company to (A) provide comfort letters (including “negative assurance” comfort and change period comfort) with respect to financial information relating to the Company and its Subsidiaries as reasonably requested by Parent as necessary and customary for financings similar to the Available Financing and (B) participate in accounting due diligence sessions. Notwithstanding anything to the contrary set forth herein, in no event shall the Company be required to: (1) pay any commitment or other fee or bear or reimburse any expense (other than with respect to the production and delivery of historical financials) in connection with the Available Financing prior to Closing, or incur any credit agreementsother actual or potential liability in connection with the Available Financing; (2) take any actions to the extent such actions would unreasonably or materially interfere with their respective ongoing business or operations; (3) take any action that would reasonably be expected to conflict with, indenturesor result in any violation or breach of, notesor default (with or without notice or lapse of time, underwriting agreementsor both) under, purchase agreementsany of their respective Organizational Documents, security documentationany applicable Laws or any material Contract; (4) take any action that would reasonably be expected to result in any condition to Closing set forth in Article VI to not be satisfied or otherwise cause any breach of this Agreement; (5) provide access to or disclose information that the Company reasonably determines would violate any attorney-client privilege of, guaranteesor conflict with any confidentiality requirements applicable to, schedulesthe Company and its Subsidiaries or waive or eliminate any privilege (provided that the Company shall notify Parent if any such information that Parent or any Debt Financing Source has specifically identified and requested is being withheld as a result of attorney-client privilege or any such obligation of confidentiality, perfection certificates as applicable, and shall use commercially reasonable efforts to disclose any such information without violating such privilege or confidentiality obligations); (6) become an issuer or other definitive documents relating obligor with respect to the Available Financing, except, solely in the case of the Company and its Subsidiaries, unless and until the Closing occurs; (7) take any action that would reasonably be expected to result in any director, officer or employee of the Company or its Subsidiaries to incur or have any personal liability under the Debt Financing relating Commitment Letter or any other agreements related to the Group CompaniesAvailable Financing or having to give any indemnity in connection with the Available Financing (except, solely in the case of the Company and their respective businesses its Subsidiaries, unless and until the Closing occurs); (8) deliver or cause the delivery of any legal opinions in connection with the Available Financing; (9) execute or deliver, or take any corporate or other action to adopt or approve, any document, agreement, certificate or instrument with respect to or in connection with the Available Financing that would be effective prior to the Closing (except any authorization letters delivered by the Company or any of its Subsidiaries in connection with the Available Financing and contemplated by clause (iii)(II) above or certificate contemplated by clause (vii) above); or (10) provide (and Parent shall be responsible for) (I) 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 statements (provided, for the avoidance of doubt, that the Company shall provide such other historical financial information regarding the Company and its Subsidiaries as is reasonably available to the Company and reasonably requested by Parent in connection with Parent’s preparation of pro forma financial statements), (II) any description of all or any component of the Available Financing, including any such description to be included in any liquidity or capital resources disclosure or any “description of notes” or other information customarily provided by investment banks or their counsel in the definitive documents preparation of an offering memorandum for private placements of non-convertible bonds pursuant to Rule 144A, (III) projections, risk factors or other forward-looking statements relating to the Debt Financing, and assist with the execution and delivery any component of the sameAvailable Financing or (IV) separate subsidiary financial statements or other information of the type required by Rule 3-09, in each caseRule 3-10, solely Rule 3-16, Rule 13-01 or Rule 13-02 of Regulation S-X or Item 402 of Regulation S-K or other information customarily excluded from an offering memorandum for private placements of non-convertible bonds pursuant to Rule 144A. The Company consents 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 deliver in 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 Company and its Subsidiaries in connection with the Debt Financing; provided that Available Financing if such logos are used solely in a manner that is not intended to, nor is to or reasonably likely to, to harm or disparage the Company’s Company or its Subsidiaries or the respective reputation or goodwill of any of its Affiliates’ reputation or goodwillthe foregoing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Owens & Minor Inc/Va/)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer The Company 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 the Company Representatives to, reasonably cooperate in each case at Buyer’s sole expense, provide to Buyer such cooperation connection with the arrangement of any debt financing (the “Financing”) as may be reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any Parent (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the ongoing operations of the Group CompaniesCompany and the Company Subsidiaries). Such cooperation by the Company, including as promptly as reasonably practicalthe Company Subsidiaries and the Company Representatives shall include, at the reasonable request of Parent, (a) participation in a reasonable number of meetings, drafting sessions, rating agency presentations and due diligence sessions, (b) furnishing Buyer Parent and the Parent Representatives with the Required Financial Information Information, (c) assisting Parent and its financing sources in the preparation of offering and syndication documents and materials, including rating agency presentations, road show presentations and similar documents and materials, in connection with the Financing (all such documents and materials, collectively, the “Offering Documents”), including providing customary authorization letters related thereto, (d) facilitating the execution and delivery at the Closing of definitive documents related to the Financing, (e) facilitating the pledging at or after the Closing of collateral in connection with the Financing, including executing and delivering any customary collateral documents and other pertinent information regarding the Group Companies customary certificates and documents as may be reasonably requested by Buyer for the completion Parent (including a certificate of the Debt Financingchief financial officer of the Company with respect to solvency matters as of Closing, as applicable), and (bf) participating in telephonic meetings using commercially reasonable efforts to obtain customary payoff letters, redemption notices, releases of liens and otherwise reasonably assisting with instruments of termination or discharge. The Company hereby consents to the preparation reasonable use of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies its logos 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 (ii) 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 documentsprovided, 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 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 deliver in 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, to harm or disparage the Company or their marks and on such other customary terms and conditions as the Company shall reasonably impose. Parent shall pay, or promptly reimburse the Company, for all reasonable out-of-pocket expenses and costs incurred in connection with the Company’s obligations under this Section 5.9, including reasonable out-of-pocket expenses and costs incurred in connection with furnishing any Required Information not currently in the Company’s possession (including any special audit reports or similar information). Notwithstanding anything in this Agreement to the contrary, neither the Company nor the Company 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, to the extent that such liability or obligation in connection with any Financing would become effective prior to the Closing Date. The Company shall not assume any liability or responsibility for the use of any of the Required Information in connection with the Financing and shall not be required to express any view as to the reasonableness of any assumptions made by the Parent or any of its Affiliates’ reputation affiliates. All such information shall be made available only pursuant to confidentiality agreements or goodwillarrangements that are customary in the context of the Financing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Global Traffic Network, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) 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 Voyage Holdings shall use its commercially reasonable best efforts to, and shall cause directors, officers, employees, consultants, advisors, counsel, accountants, auditors and other representatives of Voyage Holdings to use their commercially 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 on a timely basis such cooperation as is reasonably requested by Buyer that is reasonably necessary to assist Buyer or its Affiliates in arranging, obtaining and syndicating arranging the Debt Financing (which for purposes of this Section 8.12 includes any Alternative Financing), if any including: (provided that such requested cooperation is consistent i) assisting in the preparation for and making senior management reasonably available for a reasonable number of lender marketing meetings, presentations and calls and a reasonable number of other due diligence sessions with applicable Laws prospective lenders and does not unreasonably interfere ratings agencies in each case in connection with the operations Debt Financing and any equity financing and, in each case, upon reasonable advance notice, (ii) providing such financial information and other due diligence materials to the lenders, arrangers and agents under such Debt Financing (whether pursuant to the Debt Commitment Letter, a joinder, or an amendment and restatement thereof or otherwise) and their Affiliates, and their and their Affiliates’ respective current, former and future officers, general or limited partners, shareholders, directors, members, managers, controlling persons, employees, agents and representatives involved in such Debt Financing and the respective successors and assigns of each of the Group Companies), including as promptly as reasonably practical, foregoing parties under such Debt Financing (athe “Debt Financing Sources”) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies potential debt financing sources, in each case, as may be reasonably requested by Buyer for the completion of Buyer, the Debt FinancingFinancing Sources and such other potential debt financing sources, (biii) participating assisting Buyer, the Debt Financing Sources and other debt financing sources in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate a confidential information memorandum and other lender marketing materials for prospective lenders and materials for rating agency presentations (including providing pertinent and customary materials customary presentationsinformation regarding Voyage Holdings or its Subsidiaries as may be reasonably requested by the Buyer to the extent that such information is of the type and form customarily included in a bank information memorandum) and in the negotiation, due diligence sessions preparation and delivery of definitive transaction documents for the Debt Financing (including accounting due diligence sessionsproviding any “beneficial ownership” certifications and customary authorization letters to the Debt Financing Sources authorizing the distribution of the information referenced in this clause; provided that the representations contained in such authorization letters with respect to Voyage Holdings or its Subsidiaries shall be limited to customary “10b-5” and “no MNPI” certifications, (iv) providing pertinent and sessions customary information with rating agencies respect to the properties and assets of Voyage Holdings and its Subsidiaries reasonably required in connection with the Debt Financing to and facilitating the extent reasonable pledge and customary for financings perfection of such typeliens, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender security interests and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) 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 connection with any capital markets transaction comprising a part of guarantees supporting the Debt Financing, (iiv) providing all cooperation that is reasonable and 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 to any definitive document financing documents relating to the Debt Financing to the extent the satisfaction of such condition conditions requires the reasonable and customary cooperation of, or is within the control of, the Group Companies, Voyage Holdings and (gvi) delivering to Buyer at least three (3) Business Days prior to the Closing all such documentation and otherwise providing requested information as regarding Voyage Holdings that is reasonably requested in writing by Buyer at least ten Buyer, including (10x) Business Days prior to the Closing to the extent any requested documentation, certificates and other information required by U.S. regulatory authorities under applicable “know your customer” and ”, anti-money laundering rules rules, regulations of the USA Patriot Act of 2001 and regulations, including the PATRIOT Act and the requirements beneficial ownership regulations of 31 C.F.R. §§ 1010.230, and (hy) facilitating other customary and assisting pertinent information as is reasonably necessary to assist Buyer in the its 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 pro forma financial statements required to deliver in connection with the Debt Financing. Notwithstanding the foregoing or any other provision of this Agreement (but other than with respect to Section 8.12(f)), nothing in this Agreement will require Voyage Holdings (in each case with respect to the following clauses (A) through (E), except for any authorization letters delivered (subject to the limitation described herein) and any beneficial ownership certification) to (A) agree to pay any fees or reimburse any expenses or incur any liability prior to the Closing for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Buyer, (B) execute any certificate, agreement, document or instrument prior to the Closing, (C) give any indemnities that are effective prior to the Closing, (D) take any action that, in each casethe good faith determination of Voyage Holdings, solely to would unreasonably interfere with the extent reasonable and customary for financings conduct of such typethe business of Voyage Holdings or its Subsidiaries, and (jE) obtaining and providing documents to Buyer provide any information the disclosure of which is prohibited under applicable Law or in violation of any confidentiality obligation (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens not created 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 Financingcontemplation thereof); provided that Voyage Holdings shall notify Buyer of that information is being withheld pursuant to such logos are used solely restriction and use commercially reasonable efforts to disclose such information in a manner that is does not intended toviolate the applicable restriction. Notwithstanding anything contained in this Section 8.12 to the contrary (but other than with respect to Section 8.12(f)), nor is reasonably likely toin no event shall the Sellers, harm or disparage the Company’s Target Companies or any of their Affiliates be required to provide any financial statements to the Buyer pursuant to this Agreement other than the Financial Statements and its Affiliates’ reputation customary quarterly financial statements for the periods ended June 30, 2019 and, to the extent that the Closing Date occurs on or goodwillafter October 31, 2019, September 30, 2019.
Appears in 1 contract
Samples: Stock and Unit Purchase Agreement (Simply Good Foods Co)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) 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 provide to Parent and Merger Sub, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause the Representatives of the Company Subsidiaries and its and their respective Representatives Subsidiaries to, in each case at Buyer’s sole expense, provide to Buyer such Parent and Merger Sub all cooperation reasonably requested by Buyer Parent that is necessary or reasonably necessary required in arranging, obtaining and syndicating connection with the Debt Financing, if any including the following: (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with i) using reasonable best efforts to cause the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information Company’s senior officers and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt FinancingRepresentatives to participate in meetings, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, road shows, due diligence sessions (including accounting due diligence sessions) ), drafting sessions and sessions with rating agencies in connection agencies; (ii) assisting with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) appropriate and customary bank information memoranda, lender and investor materials for rating agency presentations, offering documents, offering or private placement bank information memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required proper or advisable in connection with the Debt Financing; (iii) using its reasonable best efforts to assist with the preparation of any loan agreement, authorizing currency or interest hedging agreement, other definitive financing documents on terms satisfactory to Parent, provided that (A) there shall be no obligation to deliver any certificate, opinion, comfort letter or any other document as a condition to the distribution Financing and (B) no obligation 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 its Subsidiaries under any Group Company that would constitute material non-public information within such document or agreement shall be effective until the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, Effective Time; (div) using reasonable best efforts to cause furnish on a confidential basis to Parent and Merger Sub and their financing sources, as promptly as practicable, with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Parent and that is within the Company’s independent registered accounting firm to provide customary assistance, including possession and in the form that the Company customarily prepares and within the timeframes so prepared; (iv) providing customary comfort letters monthly financial statements (including “negative assurance comfort” and “change period comfort”excluding footnotes) in 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 extent the Company customarily prepares such financial statements within the time such statements are customarily prepared; and (vi) using reasonable best efforts, as appropriate, to have its independent accountants provide its reasonable cooperation and assistance; provided, however, that nothing herein or in this Agreement shall require such cooperation to the extent it would unreasonably interfere with the business or operations of the Company or its Subsidiaries; and provided further; that notwithstanding anything in this Agreement to the contrary, until the Effective Time occurs, neither the Company nor any of its Subsidiaries shall be required to adopt any resolutions, assume any obligations thereunder or pay any commitment or other similar fee or give any indemnities. The foregoing notwithstanding, nothing in this Section 6.13 shall limit or restrict the obligation of Parent and Merger Sub to implement this Agreement and no failure of the Company, and its subsidiaries or any offering documents relating of their respective Representatives to perform any of their respective obligations pursuant to this Section 6.13 shall directly or indirectly provide any basis for Parent or Merger Sub to fail to perform its obligations pursuant to this Agreement, unless any refusal by the Company to take action required pursuant to this Section 6.13 is intentionally done for the purpose of preventing the Financing from occurring prior to the Debt Financing End Date. Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable 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 documented out-of-pocket expenses to the extent satisfaction such costs are incurred by the Company or its Subsidiaries at the written request 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 deliver Parent in connection with the Debt Financingcooperation provided pursuant to this Section 6.13 and Parent shall indemnify and hold harmless the Company and its Subsidiaries and their respective directors, in each caseofficers, solely to the extent reasonable employees and customary for financings of such type, Representatives from and (j) obtaining against any 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 all Costs suffered or incurred by them in connection with the Debt arrangement of the Financing; provided , except in the event that such logos are used solely in Costs arose out of a manner that is not intended to, nor is reasonably likely to, harm or disparage the Company’s or any knowing and material breach of its Affiliates’ reputation or goodwillthis Section 6.13.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) 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 provide to Parent and Merger Sub, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause the Representatives of the Company Subsidiaries and its and their respective Representatives Subsidiaries to, in each case at Buyer’s sole expense, provide to Buyer such Parent and Merger Sub all cooperation reasonably requested by Buyer Parent that is necessary or reasonably necessary required in arranging, obtaining and syndicating connection with the Debt Financing, if any including the following: (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with i) using reasonable best efforts to cause the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information Company's senior officers and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt FinancingRepresentatives to participate in meetings, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, road shows, due diligence sessions (including accounting due diligence sessions) ), drafting sessions and sessions with rating agencies in connection agencies; (ii) assisting with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) appropriate and customary bank information memoranda, lender and investor materials for rating agency presentations, offering documents, offering or private placement bank information memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required proper or advisable in connection with the Debt Financing; (iii) using its reasonable best efforts to assist with the preparation of any loan agreement, authorizing currency or interest hedging agreement, other definitive financing documents on terms satisfactory to Parent, provided that (A) there shall be no obligation to deliver any certificate, opinion, comfort letter or any other document as a condition to the distribution Financing and (B) no obligation 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 its Subsidiaries under any Group Company that would constitute material non-public information within such document or agreement shall be effective until the meaning of the United States federal and state securities laws if any Group Company were a public reporting company, Effective Time; (div) using reasonable best efforts to cause furnish on a confidential basis to Parent and Merger Sub and their financing sources, as promptly as practicable, with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Parent and that is within the Company’s independent registered accounting firm to provide customary assistance, including 's possession and in the form that the Company customarily prepares and within the timeframes so prepared; (iv) providing customary comfort letters monthly financial statements (including “negative assurance comfort” and “change period comfort”excluding footnotes) in 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 extent the Company customarily prepares such financial statements within the time such statements are customarily prepared; and (vi) using reasonable best efforts, as appropriate, to have its independent accountants provide its reasonable cooperation and assistance; provided, however, that nothing herein or in this Agreement shall require such cooperation to the extent it would unreasonably interfere with the business or operations of the Company or its Subsidiaries; and provided further; that notwithstanding anything in this Agreement to the contrary, until the Effective Time occurs, neither the Company nor any of its Subsidiaries shall be required to adopt any resolutions, assume any obligations thereunder or pay any commitment or other similar fee or give any indemnities. The foregoing notwithstanding, nothing in this Section 6.13 shall limit or restrict the obligation of Parent and Merger Sub to implement this Agreement and no failure of the Company, and its subsidiaries or any offering documents relating of their respective Representatives to perform any of their respective obligations pursuant to this Section 6.13 shall directly or indirectly provide any basis for Parent or Merger Sub to fail to perform its obligations pursuant to this Agreement, unless any refusal by the Company to take action required pursuant to this Section 6.13 is intentionally done for the purpose of preventing the Financing from occurring prior to the Debt Financing End Date. Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable 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 documented out-of-pocket expenses to the extent satisfaction such costs are incurred by the Company or its Subsidiaries at the written request 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 deliver Parent in connection with the Debt Financingcooperation provided pursuant to this Section 6.13 and Parent shall indemnify and hold harmless the Company and its Subsidiaries and their respective directors, in each caseofficers, solely to the extent reasonable employees and customary for financings of such type, Representatives from and (j) obtaining against any 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 all Costs suffered or incurred by them in connection with the Debt arrangement of the Financing; provided , except in the event that such logos are used solely in Costs arose out of a manner knowing and material breach of this Section 6.13.(b). Parent and Merger Sub acknowledge and agree that the Closing is not intended to, nor is reasonably likely to, harm or disparage conditioned on the Company’s or any availability of its Affiliates’ reputation or goodwillthe Required Transaction Funds.
Appears in 1 contract
Financing Cooperation. 8.11.1. (a) Although Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of acknowledges and agrees that obtaining the Purchase Price (the “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 not 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 prior to Section 8.11.2, the Closing the Company shall use reasonable best efforts toshall, and shall use reasonable best efforts to cause each other WU Company to, use reasonable best efforts to provide such cooperation as is reasonably requested by Buyer upon reasonable prior notice in connection with the Debt Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company Subsidiaries and its and their respective Representatives tothe Subsidiaries), in each case at Buyer’s sole expense, provide including to Buyer such cooperation the extent reasonably requested by Buyer that is reasonably necessary in arrangingBuyer, 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) 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 (ii) 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 use 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” participate at reasonable times in a reasonable number of meetings, conference calls, lender presentations and “change period comfort”) in connection due diligence sessions with any capital markets transaction comprising a part providers or potential providers of the Debt Financing, (ii) providing reasonably assist Buyer in the preparation of definitive financing documents and other materials reasonably and customarily requested to be used in connection with obtaining the Debt Financing, (iii) provide reasonably promptly to Buyer and its financing sources such financial and other information regarding such WU Company that is readily available or within such WU Company’s possession and customary consents for financing of the type similar to the inclusion Debt Financing, in each case, as is reasonably requested in connection with the Debt Financing, provided that such financing sources are party or otherwise subject to a confidentiality agreement with such WU Company, (iv) execute and deliver reasonable and customary certificates, management representation letters and other documentation required by the applicable financing sources 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 the definitive documentation related to Buyer with respect to any auditor due diligencethe Debt Financing, (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, (fv) reasonably assisting in Buyer’s use reasonable best efforts to satisfy cooperate in satisfying the conditions precedent set forth in any definitive document documentation 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, (vi) deliver possessory collateral (such as certificated equity and assist with promissory notes) within its possession to the execution and delivery applicable financing sources of the same, in each case, solely Debt Financing (subject to the extent reasonable occurrence of the Closing), and customary otherwise facilitate the pledge of collateral 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 deliver in connection with the Debt Financing, in each case, solely to Financing upon the extent reasonable and customary for financings consummation of such typethe Closing, and (jvii) obtaining and providing documents to Buyer (including draft payoff letters) relating take all reasonably requested formal corporate actions, subject to the repayment occurrence 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 Affiliates’ reputation or goodwillClosing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (PurposeBuilt Brands, Inc.)
Financing Cooperation. 8.11.1. Buyer may determineThe Company agrees to, in and shall cause its sole discretionwholly-owned Subsidiaries to and shall use its commercially reasonable efforts to cause its and their Representatives to, use commercially reasonable efforts to obtain provide customary and reasonable cooperation with the Parent Parties and their Affiliates with respect to the arrangement of debt financing to fund any portion in connection with the consummation of the Purchase Price Closing (the a “Debt Financing”); provided that , including, at the Buyer shallreasonable request by a Parent Party, promptly after such Debt Financing is obtained (xi) provide Seller assisting in the preparation for 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 participation in a customary manner; provided further thatreasonable number of lender marketing meetings, in no event shall the receipt presentations, road shows and calls and a reasonable number of such Debt Financing be a condition to Closing other due diligence and Buyer confirms that it will have at Closing sufficient cash to consummate the transactions contemplated by this Agreement drafting sessions with prospective lenders and/or underwriters 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, ratings agencies in each case at Buyer’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arranging, connection with 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate providing cooperation that is customary and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies reasonable 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 (ii) 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 Parent Parties 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 connection with any capital markets transaction comprising a part of Financing Sources for the Debt Financing, (ii) providing pertinent and customary consents to the inclusion of their audit report in respect of any financial statements of information regarding the Company and its Subsidiaries reasonably requested by the Parent Parties, including any requested documentation and other information regarding the Company and its 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 in each case at least 5 Business Days prior to the PATRIOT Act Closing Date, financial statements and financial projections, and other pertinent financial information, in all cases to the requirements of 31 C.F.R. §1010.230extent required in connection with the Debt Financing and reasonably requested by the Parent Parties, (hiii) facilitating to the extent reasonably requested, assisting the Parent Parties and assisting their Financing Sources in the preparation of appropriate and delivery of any credit agreementscustomary offering documents, indentureslender and investor presentations, notesrating agency presentations, underwriting agreementsbank information memoranda, purchase agreementsprospectuses and similar documents for the Debt Financing, security documentation, guarantees, schedules, perfection certificates or which contain all financial statements and other definitive documents data relating to the Debt Financing Company and its Subsidiaries required to be included therein (which, in the case of financial information relating to the Group CompaniesCompany and its Subsidiaries, if required by applicable rules or regulations of the SEC, under applicable Canadian Securities Law or by the underwriters for any securities offering, shall have been reviewed by the independent accountants for the Company as provided in the procedures specified by the Public Company Accounting Oversight Board in AU 722) and all appropriate pro forma financial information of the Company and its Subsidiaries (which pro forma financial statements shall be prepared by the Parent Parties or their Representatives) in accordance with, or reconciled to, U.S. GAAP and prepared in accordance with Regulation S-X under the 1933 Securities Act and under applicable Canadian Securities Law, and all other data (including selected financial data) relating to the Company and its Subsidiaries that the SEC and applicable Canadian securities regulators would require in a registered debt offering or that would be necessary for an investment bank to receive customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with a registered debt offering, (iv) providing reasonable and customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders, (v) causing its independent accountants, consistent with their respective businesses customary practice, to be included provide reasonable assistance and cooperation to the Parent Parties, including accounting due diligence sessions, and providing consent to the Parent Parties to use their audit reports relating to the Company and reasonable assistance in facilitating the definitive documents relating provision of customary “comfort” (including “negative assurance” comfort) by such independent accountants, in each case on customary terms and consistent with their customary practice in connection with financings similar to the Debt Financing, (vi) assisting the Parent Parties and assist the Financing Sources to review and comment on the Debt Financing definitive documentation as may be reasonably requested by the Parent Parties, (vii) taking all reasonable and customary corporate or other organizational action, subject to the occurrence of the Closing, reasonably requested by the Parent Parties and necessary to permit the consummation of the Debt Financing, (viii) providing pertinent and customary information with respect to its property and assets reasonably required in connection with the execution Debt Financing and delivery facilitating the pledge and perfection of liens security and the providing of guarantees supporting the Debt Financing, (ix) using commercially reasonable efforts to ensure that the Financing Sources benefit from the existing lending relationships of the sameCompany and its Subsidiaries, (x) providing all cooperation that is reasonable and customary to satisfy the conditions precedent to the Debt Financing or any financing documents relating thereto to the extent the satisfaction of such conditions requires the reasonable and customary cooperation of, or is within the control of, the Company and its Subsidiaries and (xi) assisting the Parent Parties in obtaining corporate and facilities ratings for the Debt Financing; provided, that, in each case, solely (A) neither the Company, any of its Subsidiaries nor any of their respective Representatives shall be required to pay (or agree to pay) any commitment or other fee, provide any indemnities or incur any liability or enter into any agreement in connection with the Debt Financing (other than agreements and liability entered into or incurred by the Company and its Subsidiaries that only become effective upon the consummation of the Closing) and (B) no personal liability shall be imposed on the Representatives of the Company or any of its Subsidiaries involved. The Parent Parties shall promptly, upon request by the Company, reimburse the Company for all documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company, its Subsidiaries and their respective Representatives in connection with the cooperation of the Company, its Subsidiaries and their respective Representatives contemplated by this Section. The Parent Parties shall on a joint and several basis indemnify, defend and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all fees, costs and other liabilities arising in whole or in part out of actions or omissions undertaken pursuant to this Section, except to the extent reasonable such fees, costs and customary for financings other liabilities have resulted from the willful misconduct, bad faith or gross negligence of the Company, its Subsidiaries or any such type, (i) cooperating with internal Representative. The Company and external counsel its Subsidiaries hereby consent to the use of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver their logos in connection with the Debt Financing. For avoidance of doubt, 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 Parties agree that no Lien shall be placed on any assets or shares 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 Affiliates’ reputation or goodwillSubsidiaries prior to the Closing, without the prior written consent of the Company.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine(a) Prior to and until the Closing, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer Company shall, promptly after such Debt Financing is obtained (x) provide Seller and shall cause its Subsidiaries to, 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 each 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 Subsidiaries 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) 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 (ii) 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 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 its Subsidiaries to, (1) provide to Parent and Merger Sub, as applicable, (x) the Company Subsidiaries in any offering documents relating to the Debt Financing Required Information and (iiiy) 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 Date, all such documentation and other 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. applicable regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT USA 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 Companies2001, and their respective businesses to be included in the definitive documents relating to the Debt Financingbeneficial ownership regulations, and assist with the execution and delivery of the same, but in each case, solely as relating to the Company and its Subsidiaries to the extent reasonably requested by the Parent and/or the Debt Financing Sources at least ten Business Days prior to the Closing Date and (2) use reasonable best efforts to provide to Parent 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 Merger Sub all cooperation reasonably requested by Parent that such counsel may be is necessary or reasonably required to deliver in connection with the Debt Financing, including the following: (i) using reasonable best efforts to cause the Company’s and its Subsidiaries’ senior officers and other representatives to participate in no more than two meetings (which shall be virtual) or conference call (which shall be virtual) with prospective lenders, to the extent reasonably requested in connection with the Debt Financing and only to the extent customarily needed for financings of the type contemplated by the Debt Commitment Letter, in each case at reasonable times and on reasonable advance notice, (ii) using reasonable best efforts to assist with the preparation of appropriate and customary materials for rating agency presentations, syndication documents (including any customary bank information memoranda), (iii) using reasonable best efforts to assist with the preparation of schedules to any pledge, security and other collateral documents, loan agreement or other definitive financing documentation, or any certificates, in each case, as may be reasonably requested by Parent and customary for transactions of the type contemplated by the Debt Financing Commitment, , and in each case solely to the extent such materials relate to information concerning the Company and that is necessary to complete such schedules (iv) using reasonable and customary for financings best efforts to facilitate the pledging of such typecollateral, and provided that no pledge shall be effective or public filing be made until the Effective Time, (jv) 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 Section 6.13, using reasonable best efforts to facilitate and deliver the terms of this Agreement. The Company hereby consentsPayoff Letter, on behalf of itself (vi) using reasonable best efforts to execute customary authorization and the Group Companies, to the use of the logos of the Group Companies representation letters in connection with the Debt Financing, provided that such authorization and representation letters shall related only to the historical information provided by the Company and its Subsidiaries, (vii) using reasonable best efforts to cooperate with the Debt Financing Sources’ due diligence requests and review, to the extent reasonably requested in connection with the Debt Financing, and (viii) using reasonable best efforts to take such actions as are reasonably requested by the Parent or the Debt Financing Sources to facilitate the satisfaction of all conditions precedent to obtaining the Debt Financing to the extent within the control of the Company (including delivery of the stock and other equity certificates of the Company and its Subsidiaries to the Parent); provided that such logos are used solely (I) until the Effective Time occurs, neither the Company nor any of its Subsidiaries shall (A) be required to (x) pay any fees, expenses or other amounts in a manner connection with the Debt Financing or (y) execute or enter into, or cause any Affiliates, or any of their respective directors, officers, employees or agents, to execute or enter into, any certificate, instrument, agreement or other document in connection with the Debt Financing which will be effective prior to the Effective Time (provided, that is not intended to, nor is reasonably likely to, harm or disparage no officer of the Company’s Company or any of its Affiliates’ reputation Subsidiaries who is not remaining in such position following the Closing Date shall be obligated to execute any certificate, instrument, agreement or goodwillother document), (B) have any liability or obligation under any loan agreement or any related document or any other agreement or document related to the Debt Financing or (C) be required to incur any liability in connection with the Debt Financing and (II) nothing herein shall require cooperation that would require providing access to or disclosing information that the Company reasonably determines would jeopardize any attorney-client or other legal privilege. Notwithstanding anything to the contrary in this Section 6.16, but subject to the terms set forth on Section 6.16 of the Company Disclosure Letter, nothing will require the Company or its Subsidiaries to provide (or be deemed to require the Company to prepare) any (1) pro forma financial statements, projections or other prospective information; (2) description of all or any portion of the Debt Financing; (3) risk factors relating to all or any component of the Debt Financing, including any such description to be included in liquidity and capital resources disclosure; (4) “segment” financial information and separate subsidiary financial statements, (5) any financial statements or other information required by Rules 3-09, 3-10, 3-16, 13-01 or 13-02 of Regulation S-X, Regulation S-K Item 302 or for any period prior to January 1, 2019, (6) information regarding officers or directors prior to consummation of the Merger (except biographical information if any of such persons will remain officers or directors after consummation of the Merger, if any), executive compensation and related party disclosure or any Compensation Discussion and Analysis or information required by Item 302 (to the extent not so provided in SEC filings) or 402 of Regulation S-K under the Securities Act and any other information that would be required by Part III of Form 10-K (except to the extent previously filed with the SEC), (7) information regarding affiliate transactions that may exist following consummation of the Merger, (8) information regarding any post-Closing pro forma cost savings, synergies, capitalization, ownership or other post-Closing pro forma adjustments (excluding information that is historical financial information of the Company and is derivable without undue effort or expense by the Company from the books and records of the Company or any of its subsidiaries) or (9) information necessary for the preparation of any projected or forward-looking financial statements or information that is not derivable without undue effort or expense by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Snap One Holdings Corp.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer a) The Company 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 cause its Subsidiaries to (and shall use its reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to), in each case at Buyer’s sole expense, use its and their respective reasonable best efforts to provide to Buyer such all cooperation as may be reasonably requested by Buyer that is reasonably necessary Parent in arranging, obtaining and syndicating any third party indebtedness for borrowed money to be raised by Parent or its Subsidiaries for the Debt purpose of financing 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 “Financing”). Without limiting the generality of the foregoing, 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 (i) upon reasonable advance notice and during normal business hours, make senior management, external auditors and advisors of the Company and its Subsidiaries available to participate in a reasonable number of meetings, presentations, road shows, drafting sessions and due diligence sessions with proposed lenders, lead arrangers and/or other agents or lenders for the Financing, if any and in sessions with rating agencies, (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere ii) provide reasonable assistance with the operations preparation of customary materials (to the Group Companies)extent relating to the Company or its Subsidiaries) for lender presentations, rating agency presentations, confidential information memoranda and similar documents customary or reasonably required in connection with the Financing, including as promptly as reasonably practicalthe marketing and syndication thereof, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies in each case as may be reasonably requested by Buyer Parent, (iii) on an ongoing basis, and in any event prior to the Effective Time, furnish Parent and its Financing Sources with such customary financial statements, schedules or other financial data or information reasonably requested by Parent regarding the Company and its Subsidiaries, (iv) promptly furnish Parent and its Financing Sources with such other financial, 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 Debt Financing, (bv) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) 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 (ii) 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 use reasonable best efforts to cause the Company’s independent registered accounting firm accountants to provide reasonable assistance to Parent consistent with their customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financingpractice, (iivi) providing customary consents furnish 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 such 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 Sources at least three (3) five Business Days prior to the Closing all such documentation information regarding the Company and information as its Subsidiaries that is reasonably requested required in writing connection with, and in accordance with the terms of, the Financing 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. §1010.230Patriot Act, (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 requested by any Financing Source in writing at least 10 Business Days prior to Closing and (vii) provide customary for financings 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 providing the portion of the Financing constituting syndicated credit facilities that such information does not contain a material misstatement or omission and containing a customary representation to such Financing Sources that the public side versions of such typedocuments, (i) cooperating with internal if any, do not include material non-public information about the Company 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 deliver in 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 its Subsidiaries or disparage the Company’s its or any of its Affiliates’ reputation or goodwilltheir securities.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Houston Wire & Cable CO)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) 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 and shall cause its Subsidiaries to use its and their reasonable best efforts toto provide, 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) 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 (ii) 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 representatives to provide customary assistanceprovide, all cooperation reasonably requested by Parent necessary for the arrangement and obtaining of the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company or any of its Subsidiaries), including by using its and their reasonable best efforts with respect to (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part causing the appropriate senior management of the Company to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, including a reasonable and limited number of one-on-one meetings and calls between appropriate members of senior management of the Company, on the one hand, and the actual and potential Debt FinancingFinancing Sources, on the other hand, at reasonable times and with reasonable advance notice, (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 regulationsthe Financing, including facilitating the PATRIOT Act and pledging of collateral, effective no earlier than the requirements of 31 C.F.R. §1010.230Closing, (h) facilitating and assisting in including, using reasonable best efforts to facilitate 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 Sources at the Closing all certificates representing outstanding equity interests of the Company’s Subsidiaries, (iii) assisting Parent in its negotiation and preparation of any credit agreement, indenture, note, purchase agreement, underwriting agreement, guarantees, security agreements, closing certificates (including solvency certificates) and other certificates, resolutions, letters and documents as may be reasonably requested by Parent in connection with the Financing (provided that no obligation under any such agreement, pledge or grant executed by the Company or any of its Subsidiaries shall be effective until the Closing), (iv) furnishing Parent with the Required Financial Information and supplementing the Required Financial Information as may be necessary for such Required Financial Information to remain Compliant, (v) assisting Parent in (A) the Group Companiespreparation of customary materials for rating agency presentations, offering documents, private placement memoranda, prospectuses, syndication documents and their respective businesses to be included materials including information memoranda, lender presentations and other similar marketing documents (including “public side” versions thereof) reasonably requested in connection with the definitive documents relating to the Debt Financing, and assist with including the execution and delivery of Authorization Letters, and (B) the sameconduct of any field examination and inventory appraisals, and the preparation of any related reports for the purpose of establishing collateral arrangements required in connection with the Financing, in each case as may be customary and reasonably requested by Parent, (vi) causing the local and internal counsel of the Company to provide assistance to Parent including in connection with providing customary opinions of counsel to the extent required by the Financing, (vii) causing the Company’s independent auditors to provide reasonable and customary assistance and cooperation in connection with the Financing, including, (A) rendering customary “comfort letters” in connection with the Financing as contemplated by clause (D) of the definition of Required Financial Information, (B) providing consents for use of their reports in any filings required to be made by Parent pursuant to the Securities Act or the Exchange Act, as amended, where such financial information is included, and (C) participating in a reasonable number of accounting due diligence sessions, (viii) furnishing Parent and the Debt Financing Sources with any pertinent and customary information regarding the Company and its Subsidiaries as may be reasonably requested by Parent in connection with the Financing and (ix) taking all actions reasonably requested by Parent that are necessary and customary in connection with the Financing to facilitate (A) the release of all encumbrances, security interests and collateral in respect of the Company and its Subsidiaries and (B) the termination of all guaranties for borrowed money by the Company and its Subsidiaries. The foregoing notwithstanding, the Company and its Subsidiaries shall not be required to take or permit the taking of any action pursuant to this Section 5.14 that: (1) would require the Company, its Subsidiaries or any Persons who are officers or directors of the Company or the any of its Subsidiaries to pass resolutions or consents to approve or authorize the execution of the Financing or enter into, execute or deliver any certificate, document, instrument or agreement (other than Authorization Letters) or agree to any change or modification of any existing certificate, document, instrument or agreement, in each case, solely prior to the extent reasonable and customary for financings of such typeClosing that is not contingent on the Closing, (i2) cooperating with internal and external counsel would cause any representation or warranty in this Agreement to be breached by the Company, (3) would require the Company or any of Buyer in connection with providing customary back-up certificates and factual information regarding its Subsidiaries to pay any legal opinion that such counsel may be required to deliver commitment or other similar fee or incur any other expense, liability or obligation in connection with the Debt FinancingFinancing prior to the Closing or have any obligation of the Company or any of its Subsidiaries under any agreement, certificate, document or instrument be effective until the Closing, in each casecase for which Parent is not obligated to reimburse or indemnify the Company or its Subsidiaries under this Agreement, solely to the extent reasonable and customary for financings of such type(4) would cause any director, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment officer or employee or equityholder of the Indebtedness and Company or any of its Subsidiaries to incur any personal liability (other than the release delivery of related guarantees and Liens in accordance with Authorization Letters) for which Parent is not obligated to provide indemnification pursuant to the terms of this Agreement, (5) would conflict with the organizational documents of the Company or any of its Subsidiaries or any Laws, (6) would reasonably be expected to result in a material violation or breach of, or a default (with or without notice, lapse of time, or both) under, any contract to which the Company or any of its Subsidiaries is a party, (7) would require the Company, any of its Subsidiaries or any of their Representatives to 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 or (8) would require the Company or any of its representatives to prepare any financial statements or information that are not available to it (other than as set forth in the Required Financial Information). The Nothing contained in this Section 5.14 or otherwise shall require the Company hereby consentsor any of its Subsidiaries, on behalf of itself and prior to the Group CompaniesClosing, to be an issuer or other obligor with respect to the use Financing. Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs incurred by the Company or its representatives in connection with such cooperation (provided that such reimbursement shall not include general auditor and legal expenses the Company and its Subsidiaries that would have been incurred regardless of whether cooperation was requested pursuant to this Section 5.14) and shall indemnify and hold harmless the logos of the Group Companies Company and its representatives from and against any and all losses suffered or incurred by them in connection with the Debt arrangement of the Financing; , any action taken by them at the request of Parent pursuant to this Section 5.14 and any information used in connection therewith (other than information provided that in writing by the Company or its Subsidiaries specifically in connection with its obligations pursuant to this Section 5.14), except to the extent such logos are used solely in a manner that is not intended tolosses or expense arise out of the gross negligence, nor is reasonably likely tobad faith, harm fraud or disparage willful misconduct of the Company’s Company or any of its Affiliates’ reputation Subsidiaries or goodwillany of its or their representatives.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Rent a Center Inc De)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “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 8.11.2Effective Date, the Company shall use reasonable best efforts toshall, and shall cause each Company Subsidiary to, use its commercially reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives toprovide, in each case at Buyer’s sole expense, provide to Buyer such cooperation as may be reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any Parent or its financing sources (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the ongoing operations of Company and Company Subsidiaries) in connection with the Group Companiesfinancings contemplated under any debt commitment letter obtained by the Buyers prior to the Effective Time, including using commercially reasonable efforts to (i) cause appropriate officers (including senior management), including as promptly as reasonably practicalemployees, representatives and advisors to be available to meet during normal business hours with ratings agencies, analysts, investment bankers and prospective lenders and investors in presentations, meetings, road shows and due diligence sessions, (aii) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting provide reasonable assistance with the preparation of appropriate and customary materials customary any ratings presentations, due diligence sessions (including accounting due diligence sessions) 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 offering memoranda or other marketing and investor presentations, offering documents, offering or private placement memoranda and other similar marketing disclosure documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required information in connection with the Debt Financingtherewith, authorizing the distribution of information to prospective lenders and containing a representation that the public side of such documents, if any, do not include (iii) provide any information about any Group Company or any securities of any Group Company that would constitute material non-public information within the meaning financing sources of the United States federal and state securities laws if any Group Company were a public reporting companyParent, (d) using USCo, the Purchaser or US New Opco with 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 connection with any capital markets transaction comprising a part of the Debt Financing, (ii) providing customary consents access to the inclusion of their audit report in respect of any financial statements properties, books and records of the Company and the Company Subsidiaries in any offering documents relating to (including for the Debt Financing purpose of conducting a customary commercial finance audit examination and (iii) reasonable assistance field examination of the Company and cooperation to Buyer with respect to any auditor due diligencethe Company Subsidiaries), (eiv) subject to and conditioned on the occurrence of the ClosingArrangement, in the case of the Company Subsidiaries only, execute and deliver loan agreements, pledge, security and other collateral documents, intercreditor agreements, customary certificates, authorization letters, any other customary definitive financing documents and related customary loan documents as may be reasonably requested by Purchaser or its financing sources, (v) provide the Parent, USCo, the taking Purchaser or US New Opco and its financing sources with all financial information and projections as may be reasonably requested by the Parent, USCo, the Purchaser or US New Opco or its financing sources (including pro forma consolidated and consolidating balance sheets and related pro forma consolidated and consolidating statements of customary corporate actions reasonably necessary to permit income of the consummation Company and the Company Subsidiaries as of and funding for the twelve-month period ending on the last day of the Debt Financingmost recently completed four-fiscal quarter period ended at least forty-five (45) days before the Effective Date, prepared by the Company after giving effect to the transactions herein contemplated as if the transactions had occurred as of such date (in the case of such balance sheets) or at the beginning of such period (in the case of such other statements of income), forecasts prepared by the Company of balance sheets, income statements and cash flow statements for each month for the first twelve months following the Effective Date and annually for each of the years 2014, 2015, 2016, 2017 and 2018 and borrowing base availability projections for the first twelve months following the Effective Date, including projected letter of credit balances), (fvi) reasonably assisting in Buyer’s efforts to satisfy provide the conditions precedent set forth in any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation ofParent, or is within the control ofUSCo, the Group Companies, (g) delivering to Buyer at least three (3) Business Days prior to the Closing Purchaser or US New Opco and its financing sources with all such documentation and information as is reasonably requested in writing by Buyer at least ten (10) Business Days days prior to the Closing to the extent Effective Date as required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act Act, and the requirements of 31 C.F.R. §1010.230, (hvii) facilitating direct its independent accountants and assisting in the preparation counsel to provide customary and delivery of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating reasonable assistance to the Debt Financing relating to Parent, USCo, the Group CompaniesPurchaser or US New Opco and its financing sources, 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 including in connection with providing customary back-up certificates comfort letters and factual information regarding opinions of counsel; provided, however, that neither Company nor any legal opinion that such counsel may of its Subsidiaries shall (A) be required to deliver pay any commitment or other similar fee, (B) have any liability or obligation under any credit agreement or other agreement or document related to the debt financing (or alternative financing that the Purchaser may raise in connection with the Debt Financingtransactions contemplated by this Agreement) or (C) be required to incur any other liability or expense in connection with the debt financing (or any alternative financing that the Purchaser may raise in connection with the transactions contemplated by this Agreement) unless reimbursed or reasonably satisfactorily indemnified by the Purchaser. Neither Company nor any of its Subsidiaries shall be required by this Section 4.14 to provide access to or to disclose information that, in each casethe reasonable opinion of Company’s legal counsel, solely may result in a violation of any Applicable Law or Order or any binding Contract entered into prior 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 date of this Agreement. The Company hereby consents, on behalf of itself and shall use its commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances in which the Group Companies, to the use restrictions 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 Affiliates’ reputation or goodwillpreceding sentence apply.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) 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 towill, and shall the Company will cause each of its Subsidiaries and use reasonable best efforts to cause the Company Subsidiaries and its and their respective Company Representatives to, in each case at Buyer’s sole expense, use their respective reasonable best efforts to provide to Buyer such customary cooperation as is reasonably requested by Buyer that is reasonably necessary Parent in arranging, obtaining the arrangement and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion consummation of the Debt Financing, including using reasonable best efforts to (bi) participating participate in telephonic meetings a reasonable number of requested meetings, due diligence sessions and otherwise reasonably assisting sessions with rating agencies, at reasonable times and locations mutually agreed and upon reasonable notice, (ii) assist with the preparation of appropriate and customary materials customary rating agency presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such typeinvestor presentations, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender prospectuses and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) 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, (diii) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort authorization letters (including “negative assurance comfort” and “change period comfort”) in 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 diligenceSources, (eiv) 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 provide documentation and other information as is reasonably requested required in writing by Buyer at least ten (10) Business Days prior to the Closing to the extent required by U.S. regulatory authorities under connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the requirements of 31 C.F.R. §1010.230Act, (hv) facilitating and assisting in provide 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 Company Information as may be reasonably requested by Parent and such other information that is reasonably available or readily obtainable regarding the Company and its Subsidiaries that is reasonably requested by Parent and is reasonably necessary to assist Parent in preparing pro forma financial statements required to deliver by Regulation S-X under the Securities Act for registered offerings of securities in connection with the Debt Financing, (vi) cause its independent accountants to provide assistance and cooperation with any offering of securities, including (x) 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 each caseany document related to any Debt Financing and (y) providing any customary “comfort” letters (including customary “negative assurance” comfort); and (vii) cooperate with the Debt Financing Sources’ due diligence, solely to the extent reasonable and customary for financings of or reasonable); provided, however, that (x) nothing herein will require such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating cooperation to the repayment extent it would (A) unreasonably disrupt the conduct 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 and the Subsidiaries’ respective businesses, (B) require the Company or any of the Subsidiaries or any of the Company Representatives to pay any fees or expenses or otherwise incur any liability or give any indemnities prior to the Effective Time (except to the extent any such fee or expense is conditioned on the consummation of the Merger or Parent has advanced the amount of such fees, expenses or liabilities to the Company or the Subsidiaries), or (C) reasonably be expected to conflict with, result in any violation or breach of, or default (with or without lapse of time, or both) under, the Company Organizational Documents or the organizational documents of any Subsidiary of the Company, or any applicable Law or Material Contract, (y) any documentation executed by the Company or any of its Affiliates’ reputation Subsidiaries will not become effective until the consummation of the Closing and (z) neither the Company nor any of its Subsidiaries will be required to pass resolutions or goodwillconsents or approve or authorize the execution of the Debt Financing or the definitive financing arrangements prior to the Closing, except to the extent the effectiveness of such authorization or the effectiveness of such arrangement is conditioned upon the Closing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Parker Hannifin Corp)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion (a) From and after the date of the Purchase Price (the “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 prior to the Closing, subject to Section 8.11.2, the Company Seller shall use reasonable best efforts to, and shall use its reasonable best efforts to provide, and to cause the Company Subsidiaries and its and Entities to use their respective Representatives toreasonable best efforts to provide, to Buyer, in each case at Buyer’s sole expensecost and expense (other than with respect to the production and delivery of historical financial statements, provide excluding the financial statements referred to Buyer in Section 5.23(c) to the extent not otherwise prepared by the Company Entities in the ordinary course of business), such cooperation as is customary and 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 connection with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion arrangement of the Debt Financing, including using reasonable best efforts to: (bi) participating in telephonic meetings and otherwise reasonably assisting cooperate with the preparation Debt Financing Sources’ due diligence, to the extent customary and not unreasonably interfering with the business and operations of the Company Entities; (ii) upon reasonable advance notice and during normal business hours of the Company Entities, cause the appropriate and customary materials customary presentationssenior officers of the Company Entities to participate in a reasonable number of lender meetings, road shows, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing at locations and times to be mutually agreed; (iii) (a) provide such customary financial and other pertinent information regarding the extent Company Entities as may be reasonably requested by Buyer for all or any portion of the Debt Financing and reasonably assist with the marketing efforts of Buyer for all or any portion of the Debt Financing, including reasonable and customary for financings of such type, (c) reasonably assisting in assistance with the preparation of (i) appropriate and customary materials for rating agency presentations, prospectuses, bank information memoranda, lender and investor presentationsoffering memoranda, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as customarily required in connection with obtaining financing of the type contemplated by the Debt FinancingCommitment Letter (including any registered offering of non-convertible debt securities); provided that (1) Seller’s and the Company Entities’ obligation to provide information for such materials shall be limited to information about the Company Entities and (2) other than with respect to the Required Financial Information, Seller and the Company Entities shall have no obligation to provide any financial or other information that is not reasonably available to Seller and the Company Entities, (b) provide such financial information regarding the Company Entities as is reasonably requested by Buyer and reasonably available to the Company and is reasonably necessary for Buyer’s preparation of a pro forma consolidated balance sheet as of the last day of Buyer’s most recently completed fiscal quarter and related pro forma consolidated statements of comprehensive income for the most recently completed fiscal year of Buyer and, if applicable, any subsequent interim fiscal period of Buyer, each prepared in accordance with Article II of Regulation S-X under the Securities Act, and (c) provide customary authorization letters to the Debt Financing Sources as contemplated by the Debt Commitment Letter authorizing the distribution of information relating to the Company Entities to prospective lenders and containing a representation (provided 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 authorization letters (including “negative assurance comfort” or the prospectuses, bank information memoranda, offering memoranda or private placement memoranda in which such letters are included) shall include language that exculpates Seller, the Company Entities and “change period comfort”) their respective Representatives and Affiliates from any liability in connection with any capital markets transaction comprising a part the use or misuse by the recipients thereof 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 information set forth in any such prospectuses, bank information memoranda, offering documents relating memoranda or private placement memoranda or similar memoranda or report distributed in connection therewith); (iv) furnish 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 Sources at least three (3) Business Days prior to the Closing all such documentation and information as is reasonably requested in writing by Date (to the extent the Company receives a written request from Buyer at least ten (10) Business Days prior to the Closing to the extent Date) all documentation and other information required by U.S. regulatory authorities under applicable “know your customer,” beneficial ownership and anti-money laundering rules and regulations, including the PATRIOT Act and Act, to the requirements extent required by the Debt Commitment Letter; (v) request that the Company Entities’ independent auditors provide consent for use of 31 C.F.R. §1010.230, (h) facilitating and assisting their audit reports relating to the financial statements of the Company Entities 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 materials 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 as necessary and customary for financings similar to the Debt Financing and use reasonable best efforts to provide any customary information requested by such accounting firm to enable it to comply with such request; (vi) take such corporate actions as shall be reasonably requested by Buyer (which actions shall not be effective prior to the Closing) by persons that shall remain officers or directors of such typethe Company Entities after the Closing to authorize and permit the consummation of the Debt Financing (including (subject to and contingent upon the Closing) the Company Entities executing agreements to pledge, grant security interests in, and otherwise grant liens on, the assets of the Company Entities); (ivii) cooperating execute and deliver a customary certificate of the chief financial officer (or other comparable officer) of the Company Entities in customary form with internal and external counsel of Buyer respect to financial information constituting Required Financial Information that is included in the offering materials used in connection with the offer and sale of notes, bonds or other securities as reasonably requested by the Debt Financing Sources; and (viii) request and facilitate the independent auditors of the Company Entities to (A) provide comfort letters (including “negative assurance” comfort and change period comfort) with respect to financial information relating to the Company Entities as reasonably requested by Buyer as necessary and customary for financings similar to the Debt Financing (including any registered offering of non-convertible debt securities) (including by providing customary back-up certificates any financial data of the Company Entities reasonably necessary for the independent auditors of the Company Entities to provide the comfort letters described above) and factual information regarding any legal opinion that such counsel may (B) participate in accounting due diligence sessions. Notwithstanding anything to the contrary set forth herein, in no event shall Seller or the Company Entities be required to: (1) pay any commitment or other fee or bear or reimburse any expense (other than with respect to deliver the production and delivery of historical financial statements, excluding the financial statements referred to in Section 5.23(c) to the extent not otherwise prepared by the Company Entities in the ordinary course of business) in connection with the Debt Financing, in each caseFinancing (except, solely to in 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 case of the Indebtedness Company Entities, unless and until the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consentsClosing occurs), on behalf of itself and the Group Companies, to the use of the logos of the Group Companies or incur any other actual or potential liability in connection with the Debt Financing; (2) take any actions to the extent such actions would unreasonably interfere with their respective ongoing business or operations in any material respect; (3) take any action that would reasonably be expected to conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time, or both) under, any of their respective Organizational Documents, any applicable Laws or any Material Contract; (4) take any action that would reasonably be expected to result in any condition to Closing set forth in Article 2 to not be satisfied or otherwise cause any breach of this Agreement; (5) provide access to or disclose information that Seller or any Company Entity reasonably determines would violate any attorney-client privilege of, or conflict with any confidentiality requirements applicable to, Seller or any of its Affiliates (including the Company Entities) or waive or eliminate any privilege (provided that in the case of any confidentiality obligation, Seller shall, to the extent permitted by such confidentiality obligations, notify Buyer if any such information that Buyer or any Debt Financing Source has specifically identified and requested is being withheld as a result of any such obligation of confidentiality); provided, that, to the extent Seller becomes aware that the Required Financial Information, when taken as a whole, contains any untrue statement of a material fact or omits to state any 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, Seller will use reasonable best efforts to update or supplement such information such that, after giving effect to such updates and supplements, such information, when taken as a whole along with any other written information or data provided by or on behalf of the Company, does not contain as of the time provided any untrue statement of material fact or omit to state any material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made; (6) become an issuer or other obligor with respect to the Debt Financing, except, solely in the case of the Company Entities, unless and until the Closing occurs; (7) take any action that would reasonably be expected to result in any director, officer or employee of Seller or the Company Entities to incur or have any personal liability under the Debt Commitment Letter or any other agreements related to the Debt Financing or having to give any indemnity in connection with the Debt Financing (except, solely in the case of the Company Entities, unless and until the Closing occurs); (8) deliver or cause the delivery of any legal opinions in connection with the Debt Financing; (9) execute or deliver, or take any corporate or other action to adopt or approve, any document, agreement, certificate or instrument with respect to or in connection with the Debt Financing that would be effective prior to the Closing (except any authorization letters delivered by the Company or any Company Entity in connection with the Debt Financing and contemplated by clause (iii)(b) above); or (10) provide (and Buyer shall be responsible for) (I) 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 statements (provided, for the avoidance of doubt, that the Company shall provide such other historical financial information regarding the Company Entities as is reasonably available to the Company and reasonably requested by Buyer as is reasonably necessary for Buyer’s preparation of a pro forma consolidated balance sheet as of the last day of Buyer’s most recently completed fiscal quarter and related pro forma consolidated statements of comprehensive income for the most recently completed fiscal year of Buyer and, if applicable, any subsequent interim fiscal period of Buyer), (II) any description of all or any component of the Debt Financing, including any such description to be included in any liquidity or capital resources disclosure or any “description of notes”, (III) projections, risk factors or other forward-looking statements relating to any component of the Debt Financing or (IV) separate subsidiary financial statements or other information of the type required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X or Item 402 of Regulation S-K. Seller consents to the reasonable use of the logos of the Company Entities in connection with the Debt Financing if such logos are used solely in a manner that is not intended to, nor is to or reasonably likely to, to harm or disparage Seller, the Company’s Company Entities or the reputation or goodwill of any of its Affiliates’ reputation or goodwillthe foregoing.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) 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, and shall use reasonable best efforts cause its Subsidiaries to, and shall use its reasonable best efforts to cause the Company Subsidiaries respective Representatives of the Acquired Companies to, provide to Parent all cooperation reasonably necessary and requested by Parent in connection with the arrangement of obtaining the Financing or the Alternative Financing, which cooperation shall include cooperating with (i) the Buyer Parties’ preparation of bank books, materials for rating agency presentations, offering documents, private placement memoranda, registration statements, prospectuses, business projections or other appropriate disclosure documents, (ii) reasonable participation in due diligence sessions, (iii) causing its independent accountants to provide reasonable assistance and cooperation to Parent, including participating in drafting sessions and accounting due diligence sessions, providing consent to Parent to use their audit reports relating to any of the Acquired Companies and providing any necessary “comfort letters” and management representation letters, (iv) the delivery of audited, unaudited historical and interim financial statements and projections of the Acquired Companies and the JV Entities and their respective Representatives toAffiliates, (v) the Buyer Parties’ creation and maintenance of a valid and perfected security interest in each case at Buyer’s sole expensethe Properties and the other assets of the Acquired Companies for the benefit of any lenders providing the Financing or the Alternative Financing and to enable the Buyer Parties and the Lenders to exercise and enforce their rights and remedies with respect to the Properties and the other assets of the Acquired Companies, provide (vi) assisting in the negotiation of, and executing and delivering, definitive financing documents, including pledge and security documents, and certificates, legal opinions, management representation letters or other documents, to Buyer such cooperation the extent reasonably requested by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any Parent (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations including certificates of the Group chief financial officer of each of the Acquired Companies with respect to solvency matters and consents of accountants for use of their reports in materials relating to the Financing or the Alternative Financing) and otherwise reasonably facilitating the pledging of collateral, (vii) providing reasonable access to the books and records, officers, directors, agents and Representatives of each of the Acquired Companies), including (viii) obtaining surveys and title insurance reasonably requested by Parent, (ix) as promptly as reasonably practicalpracticable, (a) furnishing Buyer to Parent and its Financing or Alternative Financing sources with the Required Financial Information all financial and other pertinent information regarding the Group any of the Acquired Companies as may be reasonably requested by Buyer for the completion Parent including all financial statements and data of the Debt type required by Regulation S-X, Regulation S-K and the other accounting rules and regulations of the SEC, (x) taking all corporate actions necessary to permit consummation of the Financing or the Alternative Financing, (bxi) participating assisting the Buyer Parties in telephonic meetings obtaining any Consents of any third parties, including third parties to the JV Entities, as requested by Parent, (xii) initiating transactions pursuant to any buy-sell, put/call, right to purchase, prepayment or similar provisions of any of the Acquired Companies pursuant to any Material Contracts, Debt agreements, Loan Documents or any Organizational Documents of any of the Acquired Companies and otherwise any of the Minority JV Entities, as reasonably assisting requested by Parent and (xiii) taking such other actions related to such Financing or Alternative Financing as are reasonably required by Parent; provided, that nothing herein shall require such cooperation to the extent it would interfere unreasonably with the preparation business or operation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies any of the Acquired Companies; provided further that none of the Acquired Companies shall be required to pay any commitment or other similar fee or make any other payment other than reasonable out-of-pocket costs or incur any other material liability in connection with the Debt Financing or the Alternative Financing or any of the foregoing prior to the extent Merger Effective Time. Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs incurred by the Acquired Companies and customary for financings of their Representatives in connection with such typecooperation. The Buyer Parties shall, (c) reasonably assisting in on a joint and several basis, indemnify and hold harmless the preparation of (i) customary bank information memorandaAcquired Companies and their Representatives from and against any and all liabilities, lender losses, damages, claims, costs, expenses, interest, awards, judgments and investor presentations, offering documents, offering penalties suffered or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required incurred by them in connection with the Debt Financing, authorizing arrangement of the distribution of information to prospective lenders Financing or the Alternative Financing (including any action taken in accordance with this Section 7.8(a)) 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 utilized in connection therewith (other than historical information within relating to the meaning of Acquired Companies). Notwithstanding anything to the United States federal and state securities laws if any Group Company were a public reporting companycontrary, (d) using reasonable best efforts the condition set forth in Section 9.2, as it applies to cause the Company’s independent registered accounting firm obligations under this Section 7.8(a), shall be deemed satisfied unless the Acquired Companies have materially contributed to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part the failure of the Debt Financing (or any Alternative Financing, (ii) providing customary consents to be obtained as a result of the inclusion Acquired Companies’ material breach 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 obligations 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 deliver in 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 Affiliates’ reputation or goodwillSection 7.8(a).
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) 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 Seller shall use its reasonable best efforts toto provide, and shall cause the Acquired Companies to use their reasonable best efforts to provide, and shall use its reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives toto provide, in each case at Buyer’s sole expense, provide to Buyer such all cooperation reasonably requested in writing by Buyer that is reasonably necessary in arranging, obtaining and syndicating customary for the Debt arrangement of the Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, using its reasonable best efforts to (a) furnishing Buyer with provide the Required Financial Information Debt Financing Parties any customary financial statements reasonably required to be delivered under the Debt Commitment Letter and any other pertinent customary information regarding the Group Companies as may be reasonably requested by Buyer necessary for the completion assembly of the Debt Financingmarketing materials customary for financings of such type, (b) participating upon reasonable advance written notice, participate in telephonic a reasonable number of meetings and otherwise reasonably assisting (which meetings may be virtual or by telephone in lieu of in-person meetings) (including customary one-on-one meetings with the preparation parties acting as lead arrangers for the Debt Financing and actual or prospective lenders and senior management and Representatives, with appropriate seniority and expertise, of appropriate and customary materials customary the Acquired Companies), presentations, road shows, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies ratings agencies, in connection with the Debt Financing to the extent each case at reasonable times and customary for financings of such typelocations mutually agreed, (c) reasonably assisting assist in the preparation of (i) any customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts with respect to the Acquired Companies for any of the Debt Financing and (ii) customary authorization and representation lettersletters solely relating to the Acquired Companies and their Subsidiaries, each as reasonably 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 assist in arranging for delivery of customary payoff and release documentation with respect to the Acquired Companies, including the Seller Debt Release Documents (drafts of which the Seller shall use its reasonable best efforts to cause provide at least three (3) Business Days prior to the Company’s independent registered accounting firm Closing Date) and other applicable customary release documentation with respect to provide any other existing guarantees and indebtedness for borrowed money of the Acquired Companies and customary assistanceUCC termination statements, including (ie) providing facilitate the granting of a security interest (and perfection thereof) in collateral with respect to the Acquired Companies and the execution and delivery of guarantees, mortgages and other customary comfort letters (including “negative assurance comfort” certificates or other documents and “change period comfort”) instruments relating to the foregoing with respect to the Acquired Companies, in each case as may be reasonably requested by Buyer as reasonably necessary and customary in connection with any capital markets transaction comprising a part of the Debt Financing, but in each case to be effective only at or after the Effective Time, (iif) providing customary consents furnish a certificate of the chief financial officer or Person performing similar functions of the Acquired Companies (solely to the inclusion of their audit report extent continuing to serve in respect of any financial statements such capacity upon the consummation of the Company and the Company Subsidiaries in any offering documents relating to the Debt Financing and (iiiClosing) reasonable assistance and cooperation to Buyer with respect to any auditor due diligencesolvency matters, (eg) subject to and conditioned on the occurrence of the Closing, the taking of take customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, and (fh) 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 deliver to Buyer at least three (3) Business Days prior to the Closing Date all such documentation and information as is reasonably requested in writing by Buyer the Debt Financing Parties at least ten (10) Business Days days prior to the Closing to the extent Date that is required by U.S. regulatory authorities under applicable “know your customer” requirements and antiAnti-money laundering rules and regulationsMoney Laundering Laws, including the PATRIOT Act and Act. The foregoing notwithstanding, neither Seller nor any of its Affiliates shall be required to take or permit the requirements of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery taking of any credit agreementsaction pursuant to this Section 5.23 that would: (A) require Seller, indenturesits Affiliates (other than the Acquired Companies, notesin each case only to the extent such resolutions or consents, underwriting agreementscertificate, purchase agreementsopinion, security documentationdocument, guaranteesinstrument or agreement are not effective until the Effective Time) or any Persons who are officers or directors of Seller or any of its Affiliates (other than the Acquired Companies, schedulesin each case only to the extent such resolutions or consents, perfection certificates certificate, opinion, document, instrument or other definitive documents relating agreement are not effective until the Effective Time and solely to the extent the Persons who are officers or directors thereof are continuing to serve in such capacity upon the consummation of the Closing) to pass resolutions or consents to approve or authorize the execution of the Debt Financing relating to the Group Companiesor enter into, and their respective businesses execute or deliver any certificate, opinion, document, instrument or agreement, (B) cause any representation or warranty or covenant in this Agreement to be included breached by Seller or any of its Affiliates or require Seller or any of its Affiliates to waive or amend any terms of this Agreement or to any contract to which any of them is a party, (C) require Seller or any of its Affiliates to pay any commitment or other similar fee or incur any other expense, liability or obligation in the definitive documents relating to connection with the Debt FinancingFinancing or have any obligation of Seller or any of its Affiliates under any agreement, and assist with the execution and delivery of the samecertificate, document or instrument be effective, in each case, other than the Acquired Companies solely to the extent reasonable and customary for financings required or effective only upon consummation of such typethe Closing, (iD) cooperating reasonably be expected to cause any director, officer, employee or stockholder of Seller or any of its Affiliates to incur any personal liability, (E) reasonably be expected to conflict with internal any Laws, (F) reasonably be expected to result in a material violation or breach of, or a default (with or without notice, lapse of time, or both) under, any contract to which Seller or any of its Affiliates is a party (provided that the Seller, its Affiliates or such Representative shall notify Buyer if any cooperation is being withheld on this basis), (G) require Seller, any of its Affiliates or any of their Representatives to provide access to or disclose information that Seller or any of its Affiliates reasonably determines would result in the loss of any attorney-client privilege or other applicable legal privilege of Seller or any of its Affiliates (provided that the Seller, its Affiliates or such Representative shall notify Buyer if any information is being withheld on this basis and external counsel shall use commercially reasonable efforts to provide such access or disclosure in a manner that would not result in such loss of Buyer privilege), (H) require the Seller or any of its Affiliates or any of their Representatives to prepare any financial statements or information that are not available to Seller and prepared in connection with providing the ordinary course of its financial reporting practice or, without limiting the obligation to provide any historical information that is the basis for any pro forma or post-closing information, to prepare any pro forma financial information or post-closing financial information, (I) other than the execution of customary back-up certificates authorization and factual information regarding any legal opinion that such counsel may be representation letters solely relating to the Acquired Companies and their Subsidiaries, each as reasonably required to deliver in connection with the Debt Financing, in each case, solely require Seller or any of its Affiliates to enter into any instrument or agreement that is effective prior to the extent reasonable and customary for financings Closing or that would be effective if the Closing does not occur, (J) require the delivery of such type, and any opinion of counsel or (jK) 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 unreasonably interfere with the terms ongoing operations 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 Seller or any of its Affiliates’ reputation . Nothing contained in this Section 5.23 or goodwillotherwise shall require Seller or any of its Affiliates to be an issuer or other obligor with respect to the Debt Financing, other than the Acquired Companies solely on and after the consummation of the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Trinity Industries Inc)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, Until the earlier to obtain debt financing to fund any portion occur of the Purchase Price (the “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 Closing and (y) deliver (or cause to be delivered) to Seller and the Company true, correct and complete copies of all arrangements pursuant to date on 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 is terminated in accordance with its obligations hereunder. Prior to the Closingterms, subject to Section 8.11.2, the Company Seller shall use commercially reasonable best efforts to, and shall use commercially reasonable best efforts to cause the Company Subsidiaries and its Subsidiaries to, and their shall use its commercially reasonable efforts to cause the respective Representatives of the Company to, in each case at Buyer’s sole expense, provide to Buyer such customary cooperation as 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing Financing, by using commercially reasonable efforts to (i) upon reasonable prior notice, make available the extent Company’s senior officers for participation in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and customary for financings of such typesessions with rating agencies, (cii) reasonably assisting in assist with the preparation of (i) customary materials for syndication documents, including rating agency presentations, bank confidential information memoranda, lender business projections and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) 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, (diii) using commercially reasonable best efforts to cause the Company’s request its independent registered accounting firm accountants to provide customary assistanceassistance and cooperation to Buyer, including (i) requesting their participation in drafting sessions and accounting due diligence sessions and requesting that they provide consent to Buyer to use their audit reports relating to the Company and providing customary comfort letters letters, (iv) using commercially reasonable efforts to assist with the preparation of pro forma financial statements and obtain customary payoff letters, drafts of financial statements, collateral access agreements (other than for individual store locations) and instruments of termination and discharge reasonably requested by Buyer, (v) furnish financial statements (including “negative assurance comfort” the Audited 2013 Financial Statements), pro forma financial statements and “change period comfort”) other financial data customarily included in connection with any capital markets transaction comprising a part financings of the type contemplated by the Debt Financing, (iivi) providing provide reasonable access (subject to execution of non-disclosure and confidentiality agreements reasonably acceptable to Seller) to prospective lenders involved in the Debt Financing to evaluate the Company’s current assets (including to permit field examinations and appraisals required by the Financing Sources customary consents for financings of the type described in the Debt Commitment Letter), cash management and accounting systems, policies and procedures relating thereto for purposes of establishing collateral arrangements and cooperate with prospective lenders to establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing; provided, that no such accounts, agreements or arrangements shall be effective prior to the inclusion Closing Date, (vii) execute and deliver definitive financing documents, including credit agreements, intercreditor agreements, pledge and security documents, and certificates, legal opinions, or other documents, to the extent reasonably requested by Buyer and otherwise reasonably facilitate the pledging of their audit report in collateral, provided, that no such documents or agreements shall be effective prior to the Closing Date, and (viii) furnish Buyer and any lenders involved with the Debt Financing, with all documentation and other information required by any Government Entity with 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 USA 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 Act. The Company hereby consents to the Debt Financing relating to the Group Companies, use of its 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 deliver its Subsidiaries’ logos in 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 provided, that such logos are shall be used solely in a manner that is not intended to, nor is or reasonably likely toto harm, harm disparage or disparage otherwise adversely affect the Company and its Subsidiaries. Notwithstanding the foregoing: (i) such requested cooperation shall not unreasonably interfere with the ongoing operations of the Company or any of its Subsidiaries; (ii) neither the Company nor any of its Subsidiaries shall be required to pay any commitment or other similar fee or incur any other liability in connection with the Debt Financing prior to the Closing; (iii) the Company and its Subsidiaries shall not be expected to incur, and none of them shall incur, prior to the Closing Date, any liability or obligation under any loan agreement or related document or any other agreement, document or contract related to the Debt Financing, (iv) the pre-Closing directors and officers of the Company, and the pre-Closing directors and officers of each Subsidiary of the Company, shall not be required to adopt resolutions approving, or to execute the contracts, agreements, documents and instruments pursuant to which the Financing is obtained, (v) neither the Company nor any of its Subsidiaries shall be required to execute (except in escrow), prior to the Closing Date, any definitive financing documents, including any credit or other agreements, pledge or security documents, or other certificates, legal opinions or documents in connection with the Debt Financing, and no obligation of the Company or its Subsidiaries under any document, agreement or any other contract relating to the Debt Financing shall be operative until the Closing Date, (vi) neither the Company nor any of its Subsidiaries shall be required to take any action that would violate the Company’s or any Subsidiary’s organizational documents or any Laws, rules or regulations or that would result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or a default under, any material contract to which the Company or its Subsidiaries is a party and (vii) neither the Company nor any of its Affiliates’ reputation Subsidiaries shall have any obligation to provide any information the disclosure of which is prohibited or goodwillrestricted under applicable Law or is legally privileged. Buyer shall (A) promptly upon request by Seller (and in any event prior to the Closing) reimburse Seller for all reasonable and documented out-of-pocket fees and expenses of the Company and its Subsidiaries and all reasonable and documented fees and expenses of their counsel and accountants incurred in connection with such requested cooperation, and (B) indemnify Seller, the Company, its Subsidiaries and its Affiliates against any claim, loss, damage, injury, liability, judgment, award, penalty, fine, Tax, cost (including cost of investigation), expense (including reasonable fees and expenses of counsel) or settlement payment incurred as a result of such cooperation (including any claim by or with respect to any such lenders, prospective lenders, agents and arrangers and ratings agencies).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Bank Jos a Clothiers Inc /De/)
Financing Cooperation. 8.11.1. Buyer may determine(a) During the Pre-Closing Period, the Company shall, and shall cause each of its Subsidiaries and use reasonable best efforts to cause its other Affiliates and the Representatives of the Company, its Subsidiaries and its other Affiliates (including their respective auditors) to provide all cooperation reasonably requested by Parent to assist Parent in its sole discretion, to obtain the arrangement of (x) any bank debt financing to fund or any portion capital markets debt financing for the purposes of financing any repayment or refinancing of debt of the Purchase Price Company and its Subsidiaries or of Parent and its Subsidiaries and any other amounts required to be paid in connection with the consummation of the Contemplated Transactions and/or (y) any amendments of, or waivers or consents granted under debt of the Company and its Subsidiaries or of Parent and its Subsidiaries, including the Parent ABL Credit Agreement and the Company Credit Agreement (the arrangements described in clauses (x) and (y) above, collectively, the “Debt Financing”); provided that , which cooperation shall include, without limitation: (i) reasonably assisting Parent and 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 Sources 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate (A) offering documents, private placement memoranda, bank information memoranda and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies similar documents required in connection with the Debt Financing to the extent reasonable and customary (B) materials for financings of such typerating agency presentations, (cii) reasonably assisting providing for the participation of senior management of the Company and its Subsidiaries in the preparation a reasonable number of rating agency presentations and meetings with prospective lenders, in each case, upon reasonable prior notice and at times and locations to be mutually agreed in good faith, (iiii) customary bank information memoranda, lender furnishing Parent and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing Sources as promptly as practicable with such financial information regarding the Company and its Subsidiaries as Parent shall reasonably request, (iiiv) furnishing Parent and the Debt Financing Sources with customary authorization and representation letters, each as required in connection with the Debt Financing, letters authorizing the distribution of information to prospective lenders or investors (including customary 10b-5 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 companyrepresentations), (dv) 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 connection reasonably cooperating with any capital markets transaction comprising a part of the Debt FinancingFinancing Sources reasonable due diligence requests, (iivi) providing customary consents to furnishing Parent and the inclusion of their audit report Debt Financing Sources promptly with all documentation and other information in respect of any financial statements of the Company and the Company its Subsidiaries in that 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 Source has requested prior to the Closing all such documentation and information as Date that 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 a Governmental Body under applicable “beneficial ownership,” “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the requirements of 31 C.F.R. §1010.230Act, (hvii) facilitating and reasonably assisting Parent in connection with the preparation by Parent and delivery its Representatives 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, Documents (including executing and their respective businesses to be included in the definitive documents relating to delivering the Debt FinancingFinancing Documents with respect thereto), the borrowing of loans and assist with the execution provision of guarantees and delivery of security interests to support the same, in each case, solely to Debt Financing by the extent reasonable Company and customary for financings of such typeits Subsidiaries, (iviii) reasonably cooperating with internal and external Parent’s legal counsel of Buyer (which may include local, regulatory or other special counsel) in connection with providing customary back-up certificates and factual information regarding any legal opinion opinions that such counsel may be required to deliver in connection with the Debt Financing, cooperating with Parent and Parent’s efforts to obtain corporate and facilities ratings, consents, landlord and bailee waivers, estoppel and non-disturbance agreements and similar consents as reasonably requested by Parent, (ix) taking all actions reasonably necessary to (A) permit the Debt Financing Sources to evaluate the Company’s and its Subsidiaries’ current assets, properties, rights, inventory, cash management and accounting systems, and policies and procedures relating thereto (including cooperating in and facilitating field examinations, collateral audits, asset appraisals and surveys), in each case, solely case in connection with their customary pre-closing due diligence or for the purpose of establishing collateral arrangements to the extent customary and reasonable and customary for financings (B) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, (x) furnishing Parent all existing field examinations, collateral audits and asset appraisals and surveys of the Company and its Subsidiaries performed in the two (2) years prior to the date of this Agreement, (xi) using reasonable best efforts to facilitate discussions with the Company’s and its Subsidiaries’ existing lending and investment banking relationships and (l) otherwise reasonably cooperating with Parent to satisfy any conditions precedent to the Debt Financing to the extent within the control of the Company, its Subsidiaries, its other Affiliates and their respective Representatives. Notwithstanding the foregoing, none of the Company, its Subsidiaries or its other Affiliates or any of their respective Representatives, shall be required to (x) provide any cooperation or assistance under this Section 5.16(a) to the extent doing so would (1) unreasonably interfere with the ongoing business or operations of such typePerson or (2) require such Person to take any action that would conflict with or violate any law or subject any director, manager, officer or employee of such Person to any actual personal liability or (y) obtain any corporate authorizations or execute or deliver any certificate, document, instrument or agreement in connection with the Debt Financing (other than the authorization letters referred to in clause (iv) above and any others that are necessary or reasonably requested in connection with the Debt Financing and that would not be effective until the Closing Date): (j1) obtaining and providing documents to Buyer jeopardize any attorney-client or other privilege; or (including draft payoff letters2) relating contravene any applicable Legal Requirement or result in the breach of any confidentiality obligation in place prior to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms date of this Agreement. Parent and the Debt Financing Sources may disclose confidential information obtained by it or its Representatives pursuant to this Section 5.16(a) to (i) potential lenders and investors in connection with the marketing and syndication of the Debt Financing and (ii) rating agencies in connection with confirming or obtaining ratings for Parent or the Debt Financing; provided that each of the foregoing are informed by Parent that such information is being disclosed on a confidential basis. The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the logos of the Group Companies Company’s (and its Subsidiaries’) logos, names and marks in connection with the Debt Financing; provided provided, that such names, marks and logos are used solely in a manner that is not intended to, nor is to or reasonably likely to, to harm or disparage the Company’s Company or any of its Affiliates’ reputation Subsidiaries. Parent shall, promptly upon request by the Company, reimburse the Company, as applicable, for all reasonable and documented out-of-pocket costs incurred by the Company, its Affiliates or goodwilltheir respective Representatives in connection with the cooperation contemplated under this Section 5.16(a). Notwithstanding the agreements of the Company to cooperate with Parent’s efforts regarding the Debt Financing, there is no financing contingency or condition precedent for the benefit of Parent in connection with the consummation of the Contemplated Transactions.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Select Energy Services, Inc.)
Financing Cooperation. 8.11.1. Buyer may determineSubject to Section 6.10(a), in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “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 prior to the Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts and shall cause its Subsidiaries to, and shall at Parent’s sole expense, use reasonable best efforts to cause cooperate in connection with the Company Subsidiaries and its and their respective Representatives toclosing of the Financing (provided, 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 Group CompaniesCompany and its Subsidiaries). Such cooperation by the Company shall include, at the reasonable request of Parent, (i) furnishing, or causing to be furnished to, Parent and its Financing Sources such customary financial and other information as Parent shall reasonably request in order to consummate the Debt Financing, including all financial statements and financial data of the type necessary for the preparation of a confidential information memoranda customary for transactions of the type contemplated by the Debt Financing and other customary and reasonably available marketing materials, including (1) audited consolidated balance sheets and related statements of income and cash flows of the Company for the fiscal years 2011, 2012 and 2013, (2) unaudited consolidated balance sheets and related statements of income and cash flows of the Company for each fiscal quarter of the Company (other than the fourth fiscal quarter) ended after the close of its most recent fiscal year and at least 45 days prior to the Closing Date (all such information to be provided under this clause (i), including as promptly as reasonably practicalcollectively, the “Required Information,” provided that in no event shall the Required Information be deemed to include, or shall the Company be required to provide, pro forma financial statements or adjustments or projections (provided that the Company agrees to use reasonable best efforts to cooperate with Parent in its preparation of such materials), (aii) furnishing Buyer participating in a reasonable number of meetings, lender presentations, due diligence sessions, drafting sessions and road shows, in each case, upon reasonable advance notice and at mutually agreed times, (iii) providing reasonable assistance to Parent and its Financing Sources in its preparation of rating agency presentations, customary bank information memoranda, offering memoranda and similar documents reasonably and customarily required in connection with the Required Financial Information Financing (including providing customary executed authorization and management representation letters and ratings agency engagement letters, provided, that the Company shall not be required to pay any cost or expenses relating to rating agency engagement letters), (iv) assisting Parent in connection with the preparation and registration of (but not executing) any pledge and security documents, currency or interest hedging arrangements, other pertinent information regarding the Group Companies definitive financing documents, or documents as may be reasonably requested by Buyer for Parent or the completion of the Debt Financing, (b) participating in telephonic meetings and Financing Sources or otherwise reasonably assisting with facilitating the preparation pledging of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies collateral in connection with the Debt Financing to (provided that such documents will not take effect until the extent reasonable and customary for financings of such typeEffective Time), (cv) reasonably assisting using commercially reasonable efforts to ensure that any syndication efforts benefit from existing lending and investment banking relationships, (vi) requesting customary payoff letters to be delivered at the Effective Time, of all indebtedness contemplated by the Debt Commitment Letters to be paid off, discharged and terminated at the Effective Time in the preparation of accordance with Section 6.12 and (ivii) providing all customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda documentation and other similar marketing documents information about the Company and due diligence efforts for its Subsidiaries requested by Parent or the Debt Financing and (ii) customary authorization and representation letters, each as required Sources 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 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” sanctions and anti-money money-laundering rules and regulations. Any use of the Company’s and its Subsidiaries’ logos in connection with the Financing shall require the Company’s prior written consent (such consent not to be unreasonably withheld, including conditioned or delayed); provided, that the PATRIOT Act actions contemplated in the foregoing clauses do not (A) involve any binding commitment by the Company or any of its Subsidiaries which commitment is not conditioned on the Closing and does not terminate without liability to the Company or any of its Subsidiaries upon the termination of this Agreement, (B) require the Company or any of its Subsidiaries to provide any information the disclosure of which is prohibited or restricted under applicable Law or is legally privileged; provided that the Company shall notify Parent and the requirements of 31 C.F.R. §1010.230Financing Sources if any such information is being withheld on such basis, (hC) facilitating 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; provided that the Company shall notify Parent and assisting in the preparation and delivery Financing Sources if any such action is not being taken on such basis, or (D) require the Company or any of its Subsidiaries to enter into or approve any credit agreements, indentures, notes, underwriting agreements, Financing or purchase agreements, security documentation, guarantees, schedules, perfection certificates agreement for the Financing prior to the Effective Time. All non-public or other definitive documents relating confidential information provided by the Company to Parent or its Affiliates pursuant to this Section 6.11 shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent and the Financing Sources shall be permitted to disclose such information to rating agencies, prospective lenders and investors during syndication of the Debt Financing relating as contemplated by the Debt Commitment Letters, subject to customary confidentiality undertakings. Parent shall promptly reimburse the Company for any expenses and costs incurred in connection with the Company’s or its Affiliates’ or Representatives’ obligations under this Section 6.11. Notwithstanding anything in this Agreement 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 typecontrary, (i) cooperating with internal and external counsel neither the Company nor any of Buyer its Subsidiaries shall be required to pay any commitment or other similar fee or enter into any definitive agreement (other than executing the authorization letters referred to in this Section 6.11(iii) above) or incur any other liability or obligation in connection with providing customary back-up certificates and factual information regarding the Financing (or any legal opinion alternative financing) prior to the Effective Time, or pay any expenses prior to the Effective Time that such counsel may are not promptly reimbursed by Parent as set forth in this Section 6.11, (ii) no officer or Representative of the Company or any of its Subsidiaries shall be required to deliver in connection with the Debt Financing, in each case, solely any certificate or opinion or take any other action pursuant to this Section 6.11 to the extent reasonable and customary for financings of any such type, action would reasonably be expected to result in personal liability to such officer or Representative and (jiii) obtaining and providing documents the board of directors of the Company shall not be required to Buyer (including draft payoff letters) relating approve any financing or agreements related thereto prior 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 Affiliates’ reputation or goodwillEffective Time.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine(a) Prior to the Effective Time, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller Company and the Company with written notice that such Debt Financing has been obtained Subsidiaries shall, 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 its 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 Parent and Sub all cooperation that is reasonably requested by Buyer Parent and that is reasonably necessary customary in arrangingconnection with the arrangement of debt and equity financings in acquisition transactions; provided, obtaining and syndicating the Debt Financinghowever, if any (provided that no such requested cooperation is consistent with applicable Laws and does not may unreasonably interfere with the ongoing operations of the Group Companies)Company and the Company Subsidiaries. Such cooperation shall include, including without limitation, (i) furnishing Parent, Sub and their Financing sources as promptly as reasonably practical, (a) furnishing Buyer practicable with the Required Financial Information financial and other pertinent information regarding the Group Companies Company and the Company Subsidiaries as may be reasonably requested in writing by Buyer for the completion 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 Debt FinancingCompany available to participate in a reasonable number of meetings, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, road shows, due diligence sessions, drafting sessions (including accounting due diligence sessions) and sessions with prospective lenders, investors and rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such typeFinancing, (ciii) reasonably assisting with the preparation of customary materials for rating agency presentations (and assisting in the preparation obtaining of (i) customary corporate, credit and facility ratings form ratings agencies), offering documents, private placement memoranda, bank information memoranda, lender prospectuses and investor presentations, offering documents, offering or private placement memoranda and all other similar marketing documents and due diligence efforts for material to be used in connection with the Debt Financing and (ii) including customary authorization and management representation letters, each as ) and all documentation and other information 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 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 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, subject to and only effective upon the PATRIOT occurrence of the earlier of the Acceptance Time and 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 earlier of the Acceptance Time and the Effective Time, (vi) within thirty-five (35) days after the end of each fiscal month, providing unaudited consolidated monthly financial statements of the Company (excluding footnotes) consisting of a balance sheet, income statement and statement of cash flows to the extent the Company customarily prepares such financial statements, (vii) filing a Quarterly Report on Form 10-Q within forty (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 requirements of 31 C.F.R. §1010.230Company’s unaudited financial statements, (hviii) facilitating permitting officers of the Company who will be officers of the Surviving Corporation after the Effective Time to execute and assisting in the preparation deliver any pledge and delivery of any credit agreementssecurity documents, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection other definitive financing documents or other certificates or other definitive documents relating 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 the Debt Financing relating solvency matters and using reasonable best efforts to the Group Companies, and obtain consents of accountants to use their respective businesses to be included reports in the definitive documents any materials relating to the Debt Financing) and otherwise reasonably facilitating the pledging of collateral and (ix) otherwise taking actions within its control to cooperate in satisfying the conditions precedent set forth in the Debt Commitment Letter or any definitive document related to the Financing; provided, however, that no obligation of the Company or any of its Subsidiaries under any certificate, document or instrument shall be effective until the earlier of the Acceptance Time and the Effective Time, and assist with the execution and delivery none of the same, in each case, solely to the extent reasonable and customary for financings Company or any 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 its Subsidiaries shall be required to deliver pay any commitment or other similar fee, pay any expense (other than as provided in this Agreement) or incur any other obligation or liability in connection with the Debt Financing, in each case, solely Financing prior 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 earlier of the Indebtedness Acceptance Time 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 Affiliates’ reputation or goodwillEffective Time.
Appears in 1 contract
Samples: Agreement and Plan of Merger (California Pizza Kitchen, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the 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 agrees to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further thatsuch assistance, 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 cause 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 toto provide such assistance, 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to as is reasonably requested by Parent. Such assistance shall include, but not be limited to, the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of following: (i) customary bank information memorandaparticipating in a reasonable number of meetings, lender and investor presentationsdrafting sessions, offering documents, offering or private placement memoranda and other similar marketing documents rating agency presentations and due diligence efforts for the Debt Financing and sessions, (ii) customary authorization furnishing Parent and representation letters, each as its lenders with all financial and other information reasonably required by Parent’s lenders in connection with the Debt Financing, authorizing including, the distribution Required Financial Information, (iii) assisting Parent and its lenders in the preparation of (A) a customary bank information to prospective lenders memorandum, confidential information memorandum and containing a representation that the public side of such similar documents, if anyincluding customary authorization or reliance letters, 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 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 for the Debt Financing and (iiiB) reasonable assistance and cooperation to Buyer with respect to any auditor due diligencematerials for rating agency presentations, (eiv) 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 cooperating with Parent 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 Company and reasonably requested by Parent, (v) assisting in the preparation of, and executing and delivering, definitive financing documents, including, customary closing certificates, as may be reasonably required in connection with the Group CompaniesDebt Financing and other customary certificates and collateral security and guarantee documentation, as may be reasonably requested by Parent, (gvi) delivering to Buyer the Parent at least three (3) Business Days prior to the Closing Date all such documentation and other 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, regulations (including the PATRIOT Act and U.S.A. Patriot Act), that has been reasonably requested in writing by the requirements of 31 C.F.R. §1010.230Financing Sources at least eight (8) Business Days prior to the Closing Date, (hvii) facilitating using commercially reasonable efforts to furnish Parent and assisting in its lenders as promptly as reasonably practicable with financial, business and other information regarding the preparation Company and delivery its Subsidiaries as may be reasonably requested by the Parent, (viii) using commercially reasonable efforts to ensure that the Financing Sources benefit materially from existing lending and investment banking relationships of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating the Company and (x) cooperating with Parent to the Debt Financing relating extent within the control of the Company, and taking all corporate actions, subject to the Group Companiesoccurrence of the Closing, and their respective businesses reasonably requested by Parent to be included in permit the definitive documents relating to consummation of the Debt Financing; provided, and assist with that (w) 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 Company shall not be required to deliver pay any fees (other than reasonable out of pocket expenses reimbursed by Parent hereunder) or incur any other liability or give any indemnity in connection with the Debt Financing, (x) no obligation of the Company under any agreement, certificate, document or instrument required to be delivered under this Section 5.17(a) shall be effective until the Closing other than in each caserespect of customary authorization or reliance letters, solely (y) no Representative of the Company shall be Table of Contents required to take any action that could reasonably be expected to result in or cause any personal liability on the extent reasonable and customary for financings part of such typeany Representative, and (jz) obtaining nothing in this Agreement will require the Company board of directors to approve any financing, including the Debt Financing, or any definitive documentation related thereto prior to Closing. Parent shall reimburse the Company for all reasonable and documented out of pocket costs and expenses incurred by the Company in connection with the Company’s cooperation and compliance with this Section 5.17(a). Parent will indemnify and hold harmless the Company and its Subsidiaries from and against any and all losses, damages, claims, costs or expenses actually suffered or incurred by them in connection with the arrangement of the Debt Financing and any information used in connection therewith. Notwithstanding anything in this Section 5.17(a) to the contrary, the Company may refuse to provide any access, or to disclose any information, if the Company is advised in writing by its outside legal counsel that providing documents to Buyer such access or disclosing such information would (A) violate applicable Law (including draft payoff letters) relating antitrust and privacy laws); provided, that, the Company shall provide such access or disclose such information to the repayment greatest extent possible without violating applicable Law or (B) cause the loss of any attorney-client privilege; provided, that, if any information is withheld pursuant to the Indebtedness foregoing clause (B), the Company shall inform the Parent as to the general nature of what is being withheld and the release parties shall use commercially reasonable efforts, such as entry into a customary joint defense agreement, to enable the Company to provide such information without causing the loss of related guarantees and Liens in accordance with the terms of this Agreementany attorney-client privilege. The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the its and its Subsidiaries’ 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, to nor is reasonably likely to, to harm or disparage the Company’s Company or any of its Affiliates’ Subsidiaries or the reputation or goodwillgoodwill of the Company or any of its Subsidiaries and its or their marks.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Integrated Device Technology Inc)
Financing Cooperation. 8.11.1. Buyer may determineSubject to Section 6.6(a), in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “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 prior to the Closing, subject to Section 8.11.2Closing Date, the Company shall use reasonable best efforts and shall cause the Company Subsidiaries to, at Parent’s sole expense, use its and shall use their respective 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 in connection with the arrangement, syndication and consummation of the Financing as is customary and may be reasonably requested by Buyer that is reasonably necessary in arrangingParent, obtaining and syndicating the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not not, in the Company’s reasonable judgment, unreasonably interfere with the ongoing operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) 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 (ii) 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 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 Subsidiaries. Such cooperation by the Company and the Company Subsidiaries shall include using its and their reasonable best efforts to: (i) subject to Section 6.6, provide all information regarding the Acquired Companies reasonably requested by Parent and its Financing Sources (or any replacement thereof) for the preparation of a customary information memorandum for a syndicated loan or bridge financing and customary offering memorandum for a Rule 144A offering of high yield debt securities, including without limitation (a) the Required Information that is Compliant and (b) all financial information of the Company and its Subsidiaries derived from the historical books and records of the Company and its Subsidiaries that is required to permit Parent and Merger Sub to prepare the pro forma financial statements required pursuant to paragraph 10 of Exhibit E of the Commitment Letter as in effect as of the date hereof, provided that Parent, and not the Company or its Subsidiaries, shall be responsible for the preparation of any pro forma financial statements and pro forma adjustments giving effect to the transactions contemplated hereby, (ii) to the extent reasonably requested by Parent, provide reasonable and customary assistance, with respect to information regarding the Acquired Companies, with the preparation of materials for rating agency presentations, road shows, bank information memoranda, private placement memoranda and other customary marketing materials and provide reasonable cooperation with the due diligence efforts of the Financing Sources with respect to the Acquired Companies to the extent reasonable and customary, including delivery to Parent and the Financing Sources of such due diligence materials with respect to the Acquired Companies as are reasonably available and reasonably requested by Parent and customarily delivered in connection with such presentations, memoranda or marketing materials, (iii) to the extent required by the Financing Sources, in the case of an offering of high yield debt securities as part of the Financing, request the independent auditors of the Company to cooperate with Parent to obtain a customary comfort letter, (iv) assist Parent in obtaining customary payoff letters, Lien terminations and instruments of discharge to allow for the payoff, discharge and termination of all Indebtedness under the Company Credit Agreement and all other documents reasonably requested by Parent or its Financing Sources relating to the Debt Financing repayment in full of the existing indebtedness of the Acquired Companies under the Company Credit Agreement and release of all related Liens and guarantees, (iiiv) reasonable assistance provide all documentation and cooperation to Buyer other information with respect to any auditor due diligencethe Acquired Companies required by U.S. bank regulatory authorities under applicable “know-your-customer,” anti-money laundering rules and regulations, (e) subject to and conditioned on including without limitation the occurrence of the ClosingUSA PATRIOT Act, 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 Acquired Companies at least three (3) Business Days prior to the Closing all such documentation and information Date, in each case as is reasonably requested in writing by Buyer Parent 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. §1010.230Date, (hvi) facilitating and assisting assist in the preparation and delivery of any credit agreementspreparation, 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 samedefinitive financing documents, in each case, solely to the extent reasonable including guarantee and collateral documents and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer in connection with providing customary back-up closing certificates and factual information regarding any legal opinion that such counsel as may be required by the Financing and other customary documents as may be reasonably requested by Parent and cooperate to deliver facilitate the pledging of, granting of security interests in and obtaining perfection of any liens on, collateral in connection with the Debt Financing, but in each caseno event shall any of the foregoing be effective until as of or after the Closing, solely to the extent reasonable and customary for financings of such type(vii) cooperate with Parent, 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 Affiliates’ reputation or goodwill.take all corporate
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) 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 ClosingCompletion Date, subject Fyffes shall provide to Section 8.11.2Chiquita, the Company and shall use reasonable best efforts cause its Subsidiaries to, and shall use all reasonable best efforts endeavours to cause the Company Subsidiaries respective officers, employees and advisors and other Representatives, including legal and accounting, of Fyffes and its and their respective Representatives Subsidiaries to, in each case at Buyer’s sole expense, provide to Buyer Chiquita and its Subsidiaries such cooperation as may be reasonably requested by Buyer that is reasonably necessary Chiquita in connection with the arranging, obtaining obtaining, syndication and syndicating consummation of the Debt Financing, if any Financing (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the business or operations of the Group CompaniesFyffes and its Subsidiaries), including (i) participating in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required or necessary in connection with the Financing, (iii) furnishing Chiquita as promptly as reasonably practical, (a) furnishing Buyer practicable with the Required Financial Information financial and other pertinent information regarding the Group Companies Fyffes and its Subsidiaries as may be reasonably requested by Buyer for Chiquita to consummate the completion of the Debt Financing, (biv) participating in telephonic meetings providing such documents and otherwise other information relating to Fyffes and its Subsidiaries as may be reasonably assisting with required to enable the preparation delivery of appropriate any customary certificates or certifications, customary legal opinion, negative assurance opinion and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing comfort letters relating to the extent reasonable and customary for financings of such typeFinancing, (cv) reasonably assisting using all reasonable endeavours to obtain the consents of Fyffes’ accountants for use of their reports on the audited financial statements of Fyffes in any materials relating to 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 (ii) 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, (dvi) using reasonable best efforts endeavours to cause obtain Fyffes’ accountant’s comfort letters and customary legal opinions reasonably requested by Chiquita or any financing source, (vii) reasonably cooperating with requests for customary due diligence investigations, (viii) using reasonable endeavours to ensure that the Company’s independent registered accounting firm to provide customary assistance, including Financing benefits from the existing lender relationships of Fyffes and its Subsidiaries and (iix) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in 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 other information about Fyffes and its Subsidiaries as is reasonably requested in writing by Buyer at least ten (10) Business Days prior Chiquita in advance of the Completion Date in connection with the Financing that relates 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 without limitation, the USA PATRIOT Act ACT; provided that (A) the Fyffes Board and officers of Fyffes prior to the Completion Date and the requirements directors and officers of 31 C.F.R. §1010.230, (h) facilitating and assisting in the preparation and delivery Subsidiaries of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating Fyffes prior 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 Completion Date shall not be required to deliver adopt resolutions approving the agreements, documents and instruments pursuant to which the Financing is obtained, except for such resolutions effective on the occurrence of the Completion, (B) Fyffes nor any of its Subsidiaries shall be required to execute, prior to the Completion Date, any definitive financing agreements, including any credit or other agreements in connection with the Debt Financing, in each case, solely to except for such agreements that are contingent on the extent reasonable and customary for financings occurrence of such typethe Completion, and (jC) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment except as expressly provided above, none 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, Fyffes nor is reasonably likely to, harm or disparage the Company’s or any of its Affiliates’ reputation or goodwillSubsidiaries shall be required to take any corporate actions prior to the Completion Date to permit the consummation of the Financing, except for such actions that are contingent on the occurrence of the Completion.
Appears in 1 contract
Samples: Transaction Agreement (Chiquita Brands International Inc)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) 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 ClosingClosing Date, subject FH shall cause FX and its Subsidiaries and their respective Representatives to Section 8.11.2provide such reasonable cooperation in connection with any financing by XC or any of its Subsidiaries in connection with the Transactions as may be reasonably requested by XC or its Representatives. Without limiting the generality of the foregoing, the Company FH shall cause FX and its Subsidiaries and their respective Representatives to, upon request, (i) prepare and furnish all financial and other pertinent information regarding FX and its Subsidiaries reasonably requested by XC (including such financial statements, schedules or other financial data relating to FX and its Subsidiaries reasonably requested by XC as may be reasonably necessary to consummate any such financing, including any pro forma financial statements or other information determined by XC to be legally required or customary in connection with any such financing); (ii) use its reasonable best efforts to, to obtain the consent of its auditor to the use of such auditor’s reports with respect to the financial statements of FX and shall its Subsidiaries in accordance with normal custom and practice and use reasonable best efforts to cause such auditor to provide customary comfort letters to the Company Subsidiaries underwriters, initial purchasers or placement agents, as applicable, in connection with any such financing; (iii) provide direct contact between (x) senior management and advisors, including auditors, of FX and (y) the proposed lenders, underwriters, initial purchasers or placement agents, as applicable, and/or XC’s auditors in connection with, the financing, at reasonable times and upon reasonable advance notice; (iv) make available the employees and advisors of FX and its Subsidiaries to provide reasonable assistance with XC’s preparation of business projections, financing documents and their respective Representatives to, offer materials; (v) obtain the cooperation and assistance of counsel to FX and its Subsidiaries 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information providing customary legal opinions and other pertinent information regarding the Group Companies as 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 reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing financing or necessary or desirable to permit XC to fulfill conditions or obligations under the extent reasonable financing documents, provided that such agreements entered into shall be conditioned upon, and customary for financings of such typeshall not take effect until, the RA Closing; (cvii) reasonably assisting assist in the preparation of (i) customary bank one or more confidential information memoranda, lender and investor presentationsprospectuses, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence syndication materials reasonably requested by XC; (viii) use commercially reasonable efforts to ensure that the syndication efforts benefit materially from the existing banking relationships of FH, FX and their respective Subsidiaries; (ix) permit XC’s reasonable 50 use of FX’s and its Subsidiaries’ logos for the Debt Financing syndication and underwriting, as applicable, of financing (iisubject to advance review of and consultation with respect to such use); (x) customary authorization participate in meetings and representation letters, each as required in connection presentations with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that investors, as applicable (including the public side participation in such meetings of such documentsFX’s senior management); (xi) use commercially reasonable efforts to assist in procuring any necessary rating agency ratings or approvals; (xii) not commence or effect any offering, if any, do not include any information about any Group Company placement or any securities arrangement of any Group Company that would constitute material non-public information within debt securities or bank financing competing with the meaning proposed financing (excluding, for the avoidance of doubt, the United States federal RA Loan (and state securities laws if not permit any Group Company were a public reporting companysuch offering, (d) using reasonable best efforts placement or arrangements 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 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 occur on its behalf); and (iiixiii) reasonable assistance furnish XC and cooperation to Buyer any lenders involved with such financing with all documentation and other information required 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 financing under applicable “know your customer” and anti-money laundering rules and regulations. In addition, including the PATRIOT Act FH shall, 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, shall cause its Subsidiaries and their respective businesses to be included in the definitive documents relating to the Debt FinancingRepresentatives to, and assist with the execution and delivery of the same, in each case, solely to the extent reasonable and customary for financings of such typeupon request, (i) cooperating use commercially reasonable efforts to ensure that the syndication efforts with internal respect to such financing benefit materially from the existing banking relationships of FH and external counsel its Subsidiaries and (ii) not commence or effect any offering, placement or arrangement of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver in connection debt securities or bank financing competing with the Debt Financingproposed financing (excluding, in each casefor the avoidance of doubt, solely the RA Loan (and not permit any such offering, placement or arrangements 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, occur 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 Affiliates’ reputation or goodwillbehalf).
Appears in 1 contract
Samples: Share Subscription Agreement
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “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 toprovide to Parent, and shall use cause the officers, employees and representatives of the Company to provide to Parent, at Parent’s sole expense, all cooperation reasonably requested by Parent that is necessary or reasonably required in connection with any debt financing by Parent, Sub or any of their respective affiliates in connection with the Transactions and that is customary in connection with financing comparable to the Financing, including the following: (i) using reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at BuyerCompany’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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information senior officers and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion representatives, upon reasonable advance notice, to participate in a reasonable number of the Debt Financingmeetings, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, road shows, due diligence sessions (including accounting due diligence sessions) ), drafting sessions and sessions with rating agencies in connection agencies; (ii) assisting with the Debt Financing to the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of (i) appropriate and customary bank information memoranda, lender and investor materials for rating agency presentations, offering documents, offering or private placement bank information memoranda (including the delivery of customary representation letters as contemplated by the Commitment Letter) and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as reasonably 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, ; (diii) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistancedirect contact between (x) senior management and advisors, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financingauditors, (ii) providing customary consents to the inclusion of their audit report in respect of any financial statements of the Company and (y) the proposed lenders, underwriters, initial purchasers or placement agents, as applicable, and/or Parent’s or any of its affiliate’s auditors in connection with the financing; (iv) using reasonable best efforts to assist with the preparation of any pledge and security documents, any indenture, loan agreement, currency or interest hedging agreement, other definitive financing documents on terms reasonably satisfactory to Parent, or other certificates, legal opinions or documents as may be reasonably requested by Parent, provided that none of the Company Subsidiaries or any of its officers, employees or representatives shall be required to execute any documents that would be effective before the Closing and no obligation of the Company or any of its officers, employees or representatives under any such document or agreement shall be effective until the Closing; (v) using reasonable best efforts to facilitate the pledging of collateral, provided that no pledge shall be effective until the Closing; (vi) using reasonable best efforts to furnish on a confidential basis to Parent and its financing sources, as promptly as practicable, financial and other pertinent information regarding the Company as may be reasonably requested by Parent, including all financial statements and other financial data required by the documents used in any offering documents relating to connection with 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 such additional financial information as is necessary to permit make such financial statements compliant with Regulation S-X (the consummation of and funding of the Debt Financing, “Required Information”); (fvii) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing providing monthly financial statements (excluding footnotes) to the extent satisfaction of the Company customarily prepares such condition requires the cooperation of, or is financial statements within the control oftime such statements are customarily prepared; (viii) deliver to Parent, the Group Companies, (g) delivering to Buyer at least three (3) Business Days five days prior to the Closing Date, all such documentation and other information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior relating to the Closing to the extent Company and its affiliates 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. §1010.230Act, (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 such documentation and other information is requested by providers of the Financing at least 10 Business Days prior to the Closing Date; and (ix) using reasonable best efforts to cause the Company’s independent accountants to cooperate with and assist Parent in preparing customary and appropriate information packages and offering materials as the parties to the Commitment Letter or other parties participating in the Financing may reasonably request 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 deliver use in connection with the Debt Financingoffering and/or syndication of equity securities, debt securities, loan participations and other matters contemplated by the Commitment Letter, including by providing customary accountant’s comfort letters (including “negative assurance”) and consents from the Company’s independent accountants; provided that nothing in each case, solely this Agreement shall require such cooperation to the extent it would, in the Company’s reasonable judgment, (A) interfere unreasonably with the business or operations of the Company, (B) cause any representation, warranty, covenant or other term in this Agreement to be breached or (C) cause any closing condition set forth in this Agreement to fail to be satisfied; provided, further, that notwithstanding anything in this Agreement to the contrary, until the Closing occurs, neither the Shareholder Representative nor the Company nor any of their respective affiliates shall (1) be required to pay any commitment or other fee, (2) have any liability or obligation under any loan agreement or any related document or any other agreement or document related to the Financing (or Alternative Financing) or (3) be required to incur any other liability in connection with the Financing contemplated by the Commitment Letter (or any Alternative Financing) or take any action that would be prohibited by any applicable Law or cause a default of, or breach under, or otherwise violate any Material Contract. Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and customary for financings of such type, documented out-of-pocket costs and (j) obtaining and providing documents to Buyer expenses (including draft payoff lettersattorneys’ fees) relating to the repayment extent such costs and expenses are incurred by the Company or any of its affiliates in connection with such cooperation provided by the Indebtedness Company or its affiliates or their respective officers, employees and the release of related guarantees and Liens in accordance with other representatives pursuant to the terms of this AgreementSection 6.11 or in connection with compliance with its obligations under this Section 6.11 and Parent shall indemnify and hold harmless the Company and its affiliates and their respective officers, employees and representatives from and against any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the arrangement of the Financing and any information utilized in connection therewith (other than arising from information provided by the Shareholder Representative or the Company), except in the event such liabilities or losses arose out of or result from the willful misconduct of the Company or any of its representatives. The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the its 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 or reasonably likely to, to harm or disparage the Company’s Company or any of its Affiliates’ the reputation or goodwillgoodwill of the Company and its affiliates and their respective marks.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Hill-Rom Holdings, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine(a) From the date hereof until Closing, in order to assist Parent in obtaining its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “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 8.11.2financing, the Company shall use reasonable best efforts toshall, and shall use its reasonable best efforts to cause the Company its Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, use and provide reasonable best efforts to Buyer such cooperation cooperate with Parent and Merger Sub as reasonably requested by Buyer Parent that is reasonably necessary are customary 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 connection with the operations arrangement and implementation of the Group Companies)Parent’s debt financing, including Parent’s expectation of a public offering of Parent’s debt securities. Such reasonable best efforts by the Company shall include, at the reasonable request of Parent and Merger Sub, (i) cooperation in the preparation of any offering memorandum, prospectus, bank book, ratings agency presentations or similar documents used in connection with the syndication and marketing of Parent’s debt financing; provided, that Parent is solely responsible for the content of any pro forma financial statements contained therein, (ii) furnishing Parent and its debt financing sources as promptly as reasonably practical, (a) furnishing Buyer practicable after Parent’s request with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt FinancingStatements, (biii) participating causing the Company’s senior management teams to participate in telephonic meetings and otherwise reasonably assisting with the preparation a reasonable number of appropriate and customary materials customary lender presentations, due diligence sessions (including accounting due diligence sessions) and , “road shows”, sessions with rating ratings agencies and meetings with prospective lenders, in connection with the Debt Financing each case, upon reasonable advance notice, during normal business hours, and at mutually agreed times, (iv) at least two (2) Business Days prior to Closing (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 (ii) 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 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 requested from 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 five (35) Business Days prior to the Closing anticipated Closing), providing all such documentation and other information about the Company as is reasonably requested in writing by Buyer at least ten (10) Business Days prior the Parent which Parent’s debt financing sources reasonably determine is required with respect 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 USA PATRIOT Act and that is required by the requirements debt financing sources associated with Parent’s debt financing or otherwise reasonably required or requested by the underwriters in connection with a public offering of 31 C.F.R. §1010.230Parent’s debt securities, (hv) 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 constituting a condition to any of Parent’s debt financing sources’ obligations under the debt commitment letter (if any) associated with Parent’s debt financing, and as reasonably requested by Parent, using reasonable best efforts to facilitate the pledging of collateral and customary for financings the granting of such type, (i) cooperating with internal and external counsel of Buyer security interests in connection with providing Parent’s debt financing; provided that no such action shall be effective until the Closing, (vi) assisting Parent in obtaining the cooperation of the independent accountants of the Company and its Subsidiaries, including with respect to the delivery of customary back-up certificates accountants’ consents and factual information regarding any legal opinion that such counsel may be required to deliver comfort letters (or an agreed upon procedures letter in lieu of a comfort letter) in connection with the Debt Financinga public offering of Parent’s debt securities and (vii) assisting Parent in obtaining customary legal opinions, 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 Companiesreasonably requested by Parent, to the use of the logos of the Group Companies be delivered in connection with the Debt Financing; provided that such logos are used solely Parent’s debt financing or in connection with a manner that is not intended to, nor is reasonably likely to, harm or disparage the Companypublic offering of Parent’s or any of its Affiliates’ reputation or goodwilldebt securities.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Roper Technologies Inc)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer The Company 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 its Subsidiaries and its and their respective Representatives to, in each case at BuyerParent’s sole expense, use commercially reasonable efforts to 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 connection with the operations arrangement of the Group Companies)Financing (for purposes of this Section 8.10, including (i) any flex applicable to the Financing and (ii) any alternative financing) as promptly as reasonably practical, (a) furnishing Buyer is customary in connection with the Required Financial Information and other pertinent information regarding arrangement of financings similar to the Group Companies Financing as may be reasonably requested by Buyer for Parent. Such cooperation by the completion Company shall include, at the reasonable request of Parent, using commercially reasonable efforts to (a) (1) agree to enter into, as of the Debt FinancingEffective Time, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) 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 (ii) customary authorization and representation letters, (2) deliver, as of the Effective Time, such officer’s certificates (including a solvency certificate of the chief financial officer of the Company in the form contemplated by the Financing Commitments), in each case as are customary in financings of such type and as are, in the good faith determination of the persons executing such officer’s certificates, accurate, and (3) pledge, grant security interests in, and otherwise grant liens on, the Company’s assets pursuant to such agreements as may be reasonably requested, provided that no obligation of the Company under any such agreement, pledge or grant shall be effective until the Effective Time, (b) provide to the Lenders pertinent and customary financial and other information regarding the Company and its Subsidiaries in the Company’s possession, in connection with the offerings of any debt securities contemplated by the Commitment Letters, (c) make the Company’s officers reasonably available to assist the lenders (including by participating in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies, and reasonably cooperating with the marketing efforts of Parent and Purchaser and such lenders), (d) reasonably assist with the preparation of materials for rating agency presentations, offering documents, syndication documents (including bank information memoranda, private placement memoranda, prospectuses and lender and investor presentations), business projections and similar documents 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 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 obtain customary legal opinions and issue customary representation letters 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 Financingauditors, (f) reasonably assisting in Buyer’s efforts obtain customary accountants’ comfort letters and consents to satisfy the conditions precedent set forth in any definitive document use of accountants’ reports relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, or is within the control of, the Group CompaniesCompany, (g) delivering to Buyer at least three (3) Business Days prior assist Parent and Purchaser in obtaining corporate, credit and facility ratings from rating agencies for the Financing and assist Parent and Purchaser in obtaining other customary documentation and items relating to the Closing all such Financing, (h) furnish requested documentation and other 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 Governmental Authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA 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 type2001, (i) cooperating with internal and external counsel arrange for documentation reasonably facilitating the pledging of Buyer in connection with providing collateral (including requesting customary back-up certificates and factual information regarding any legal opinion that such counsel payoff letters, releases, lien terminations, waivers, consents, estoppels, approvals as may be required in connection therewith and instruments of discharge) to deliver be delivered at the Acceptance Time relating to all indebtedness to be paid off, discharged and terminated on the Acceptance Time, (j) use commercially reasonable efforts to take corporate actions reasonably necessary to permit the consummation of the Financing upon the Acceptance Time and to permit the proceeds thereof to be made available to the Company by the Company and its Subsidiaries, (k) cooperate reasonably with the lenders’ due diligence, to the extent customary and reasonable, (l) otherwise reasonably cooperate in connection with the Debt Financing, consummation of the Financing and (m) using commercially reasonable efforts to satisfy the conditions precedent set forth in each case, solely the Financing Commitments to the extent the satisfaction of such conditions requires the cooperation of or is within the control of the Company. Parent shall promptly reimburse the Company for any reasonable and customary for financings documented out-of-pocket expenses and costs incurred in connection with the Company’s or its affiliates’ obligations under this Section 8.10. Parent acknowledges and agrees that none of such typethe Company or any Subsidiary of the Company, or any of their respective Affiliates or any of their respective Representatives, shall have any responsibility for, or incur any liability to any Person under or in connection with, the arrangement of the Financing or any Alternative Debt Financing that Parent may raise in connection with the Transactions, and that Parent shall indemnify and hold harmless the Company, any Subsidiary of the Company and their respective Affiliates and Representatives from and against any and all losses suffered or incurred by them in connection with the arrangement of the Financing or any alternative debt financing and any information utilized in connection therewith (j) obtaining other than the financial statements of the Company and providing documents to Buyer (including draft payoff letters) relating its Subsidiaries and other information provided by or on behalf of the Company or its Subsidiaries). Notwithstanding anything in this Agreement to the repayment contrary, (i) neither the Company nor any of its Subsidiaries shall be required to pay any commitment or other similar fee or enter into any definitive agreement or incur any other liability or obligation in connection with the Financing (or any alternative financing) prior to the Effective Time and (ii) none of the Indebtedness and Company or any of its Subsidiaries shall be required to take any action that will conflict with or violate the release Company’s or such Subsidiary’s organizational documents or any Laws or result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or default under, any Contract to which the Company or any of related guarantees and Liens in accordance with its Subsidiaries is a party. Any information provided to Parent or any other Person pursuant to this Section 8.10 shall be subject to the terms of this Confidentiality Agreement. The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the its and its Subsidiaries’ 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 to or reasonably likely to, to harm or disparage the Company’s Company or any of its Affiliates’ Affiliates or their reputation or goodwill.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Packaging Corp of America)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) 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 its reasonable best efforts toefforts, and shall cause each of the Sale Entities to use their reasonable best efforts, and each of them shall use their reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives torepresentatives to use their reasonable best efforts, in each case at Buyer’s sole expenseto provide customary cooperation, provide to Buyer such cooperation the extent reasonably requested by Buyer that is reasonably necessary in arrangingwriting, obtaining and syndicating in connection with the Debt Financingoffering, if arrangement, syndication, consummation, issuance or sale of any Financing or Alternative Financing obtained in accordance with this Section 5.13 (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the ongoing operations of Seller, the Group CompaniesSale Entities or any of its Affiliates), including as including, to the extent so requested, using reasonable best efforts to: (i) furnish promptly as reasonably practical, (a) furnishing to Buyer with the Required Financial Financing Information and such other pertinent financial information regarding the Group Companies Sale Entities as may be is reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing and reasonably available to the extent Seller; (ii) provide reasonable and customary for financings of such type, (c) reasonably assisting assistance to Buyer and the Financing Parties in the preparation of of, and provide information with respect to the Sale Entities customarily included in, (iA) customary bank offering documents, offering memoranda, offering circulars, private placement memoranda, registration statements, prospectuses, syndication documents and other syndication materials, including information memoranda, lender and investor presentations, bank books and other marketing documents, and similar documents for any portion of the Financing and (B) materials for rating agency presentations; (iii) cooperate with the marketing efforts of Buyer and the Financing Parties, including, to the extent applicable, obtaining representation and authorization letters and arranging for customary auditor consents for use of any Financing Information and other financial data in the marketing and offering documents; (iv) make senior management or other appropriate personnel of the Sale Entities available, offering at reasonable times and locations and upon reasonable prior notice, to participate in meetings (including one-on-one conference or private placement memoranda virtual calls with Financing Parties and other similar marketing documents potential Financing Parties), drafting sessions, presentations, road shows, rating agency presentations and due diligence efforts for sessions and other customary syndication activities, provided, at the Debt Financing and Sale Entities’ option in consultation with Buyer, any such meeting or communication may be conducted virtually by videoconference or other media; (iiv) 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 Sale Entities’ independent registered public accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection provided that the independent registered public accounting firm shall not be required to provide assistance with respect to the preparation of any financial statements other than such assistance that is necessary for any capital markets transaction comprising by the Buyer to comply with applicable securities laws, and to participate in a part reasonable number of due diligence sessions; 62 4863-6343-8441 v.8 (vi) provide customary authorization letters authorizing the Debt Financing, distribution of Sale Entities’ information to prospective lenders in connection with a syndicated bank financing; (iivii) providing customary consents to the inclusion of their audit report assist in respect of any financial statements of the Company obtaining or updating corporate and the Company Subsidiaries in any offering documents relating to the Debt Financing and facility credit ratings; (iiiviii) 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 assist in the negotiation and preparation and delivery of any credit agreementsagreement, indenturesindenture, notesnote, purchase agreement, underwriting agreements, purchase agreements, security documentationagreement, guarantees, hedging agreement, customary closing certificates and any other certificates, exhibits, schedules, perfection certificates or other definitive documents relating to the Debt Financing relating to the Group Companiesletters and documents, and their respective businesses to as may be included in the definitive documents relating to the Debt Financing, and assist with the execution and delivery of the samereasonably requested by Xxxxx, in each case, solely to case as contemplated in connection with the extent reasonable and customary for financings of such type, Financing; (iix) cooperating cooperate with internal and external counsel of Buyer or any Financing Party in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver in connection with the Debt Financing; (x) deliver, in each caseat least three (3) Business Days prior to Closing, solely to the extent reasonable reasonably requested in writing at least nine (9) Business Days prior to Closing, all documentation and customary for financings other information regarding the Sale Entities that any Financing Party reasonably determines is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act of such type2001, 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 Companiesand, to the extent required by any Financing Party, a beneficial ownership certificate (substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association) in respect of any of the Sale Entities or any of their Subsidiaries that qualify as a “legal entity customer” under the Beneficial Ownership Regulation (31 C.F.R. § 1010.230); (xi) permit use of the Sale Entities’ or their Subsidiaries’ logos of the Group Companies in connection with the Debt Financing, subject to Seller’s consent in all respects (not to be unreasonably withheld, conditioned or delayed); 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 Sale Entities or their Subsidiaries or the Sale Entities’ or their Subsidiaries’ reputation or goodwill; and (xii) take all corporate actions, subject to the occurrence of the Closing, reasonably requested by Buyer to permit the consummation of the Financing and to permit the proceeds thereof to be made available on the Closing Date. (b) The actions contemplated in this Section 5.13 with respect to the Financing do not and shall not (i) require such cooperation from Seller or the Sale Entities to the extent it would require Seller, the Sale Entities, any of its or their respective Subsidiaries, or any of its Affiliates’ reputation or goodwill.their respective directors, officers, employees or stockholders (“Representatives”), to incur any monetary liability, pay any fees, reimburse any expenses, or provide any indemnity, in each case, prior to the Closing that is not contingent on the Closing or for which Xxxxx is not obligated to
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x1) 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 8.11.2the Company shall, and shall cause its Subsidiaries to, reasonably cooperate in connection with the arrangement of the Debt Financing, any Debt Securities Offering or any Alternative Financing, which cooperation by the Company shall use consist of, at the reasonable best efforts torequest of Purchaser, (a) furnishing Purchaser and shall use FinanceCo and their Financing Sources with customary financial information regarding the Company as reasonably requested by Purchaser; (b) using reasonable best efforts to cause the Company Subsidiaries its senior officers to be available, during normal business hours and its and their respective Representatives toupon reasonable advance notice, to participate in each case at Buyer’s sole expensea reasonable number of meetings, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary in arrangingpresentations, 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentationsroad shows, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing, any Debt Securities Offering or any Alternative Financing and using reasonable best efforts to the extent reasonable and customary for financings of facilitate such type, contact; (c) reasonably assisting in with the preparation of (i) appropriate and customary bank information memoranda, lender and investor materials for rating agency presentations, offering documents, offering or private placement memoranda memoranda, bank information memoranda, prospectuses and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as customarily 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, debt financings; (d) using reasonable best efforts executing and delivering customary definitive financing documents to cause the Company’s independent registered accounting firm to provide customary assistancebe effective no earlier than, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in 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 Closingof, the taking of customary corporate actions reasonably necessary Effective Time; (e) furnishing Purchaser and FinanceCo with documents or other information required by bank regulatory authorities with respect 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 Securities Offering or any Alternative 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 U.S.A. Patriot Act of 2011 of the United States, as well as applicable regulations of the Office of Foreign Assets Control (OFAC) of the United States, the Foreign Corrupt Practices Act of 1977 of the Unites States and the requirements Investment Company Act 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 1940 of the sameUnited States, in each case, solely at least five (5) Business Days prior to the Closing (to the extent requested by the Purchaser in writing at least 10 days prior to the Closing Date); (f) using reasonable best efforts to assist Purchaser and FinanceCo in obtaining accountants’ comfort letters, if any, including customary for financings negative assurance from one or more of such type, (i) cooperating the Company’s independent accountants’ on customary terms and consistent with internal the accountants customary practice and external cooperate with Purchaser’s and FinanceCo’s legal counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion opinions that such legal counsel may be required to deliver give in connection with the Debt Financing, any Debt Securities Offering or any Alternative Financing; (g) without limiting the obligations of the Company pursuant to Section 4.10 below, agreeing to enter into such agreements, including customary payoff letters and perfection certificates, and using its reasonable best efforts to (i) deliver such officer’s certificates and lien releases, if any, as are customary in each casefinancings of such type and (ii) otherwise grant, solely and provide customary materials that facilitate the perfection or enforcement of, liens on the assets of the Company or any of its Subsidiaries pursuant to such agreements as may be reasonably requested, including using such reasonable best efforts to provide original copies of all certificated securities (with transfer powers executed in blank), control agreement, surveys, title insurance and mortgages (provided that no obligation of the Company or any of its Subsidiaries under any such agreement, pledge or grant shall be effective until the Effective Time); (h) cooperating with the marketing efforts of Purchaser, FinanceCo and the Financing Sources for all or any portion of the Debt Financing, any Debt Securities Offering or any Alternative Financing; (i) 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 documents distributed to prospective lenders); (j) cooperating with the Financing Sources’ customary securities underwriting and secured lending due diligence investigation, to the extent customary and reasonable; and (k) using reasonable best efforts to procure prior to or concurrent with the launch of syndication, at Purchaser’s expense, ratings (but not specific ratings) for the Debt Financing, any Debt Securities Offering or any Alternative Financing from each of S&P Global Ratings Inc. (“S&P”) and customary for financings of such typeXxxxx’x Investor Services, Inc. (“Moody’s”), and a public corporate credit rating and a public corporate family rating (jbut not specific ratings in either case) obtaining and providing documents to Buyer (including draft payoff letters) relating in respect of Purchaser after giving effect to the repayment Debt Financing, any Debt Securities Offering or any Alternative Financing from each of S&P and Moody’s, respectively. Notwithstanding anything to the Indebtedness and the release of related guarantees and Liens contrary contained in accordance with the terms of this Agreement. The , neither the Company hereby consents, on behalf nor any of itself and the Group Companies, its Subsidiaries shall be required to (i) pay any commitment or other similar fee; (ii) incur any liability of any kind (or cause their respective Representatives to incur any liability of any kind) prior to the use of the logos of the Group Companies Effective Time; (iii) other than with respect to authorization letters referred to above, enter into any binding agreement or commitment in connection with the Debt Financing; provided that such logos are used solely in a manner , any Debt Securities Offering or any Alternative Financing that is not intended to, nor is reasonably likely to, harm or disparage conditioned on the Company’s occurrence of the Effective Time and does not terminate without liability to the Company or any of its Affiliates’ reputation Subsidiaries upon termination of this Agreement; (iv) pledge any assets as collateral effective prior to the Effective Time; or goodwill(v) take any action that would (A) unreasonably interfere with the ongoing operations of the Company and its Subsidiaries; (B) cause any representation or warranty in this Agreement to be breached; (C) cause any director, officer or employee of the Company or any of its Subsidiaries to incur any personal liability; (D) conflict with the Constitutional Documents of the Company or any of its Subsidiaries or any Laws; (E) require the Company to provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries; or (F) require the Company to prepare separate financial statements for any Subsidiary of the Company or change any fiscal period.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, (a) Subject to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xSection 6.11(a) 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 trueremaining provisions of this Section 6.12, 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 prior to the Merger Closing, subject to Section 8.11.2, the Company shall use reasonable best efforts and shall cause its Subsidiaries to, and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case at BuyerParent’s sole expense, provide to Buyer such cooperation reasonably requested by Buyer that is reasonably necessary cooperate in arranging, obtaining and syndicating connection with the Debt arrangement of the Financing or any Alternative Financing, if any (provided that such requested which reasonable cooperation is consistent with applicable Laws and does not unreasonably interfere with by the operations Company shall consist of, at the reasonable request of the Group Companies), including as promptly as reasonably practicalParent, (ai) furnishing Buyer Parent and Merger Sub and their Financing Sources with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion Parent and (ii) using its reasonable best efforts to (A) cause its senior officers to be available, during normal business hours and upon reasonable advance notice, to participate in a reasonable number of the Debt Financingmeetings, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, road shows, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing Financing, and using its reasonable best efforts to the extent reasonable and customary for financings of facilitate such typecontact, (cB) reasonably assisting in provide customary assistance with the preparation of (i) appropriate and customary bank information memoranda, lender and investor materials for rating agency presentations, offering documents, offering or private placement memoranda memoranda, bank information memoranda, prospectuses and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as customarily 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 companydebt financings, (dC) using reasonable best efforts execute and deliver customary definitive financing documents to cause the Company’s independent registered accounting firm to provide customary assistancebe effective no earlier than, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in 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 Closingof, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt FinancingEffective Time, (fD) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in any definitive document relating to the Debt Financing furnish Parent, 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 Parent, with reasonable documents or other information required by bank regulatory authorities with respect to the Closing to the extent required by U.S. regulatory authorities Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT U.S.A. Patriot Act of 2011, as well as applicable regulations of the Office of Foreign Assets Control (OFAC), the Foreign Corrupt Practices Act of 1977 and the requirements Investment Company Act 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 same1940, in each case, solely at least 10 Business Days prior to the extent reasonable and customary for financings of such typeMerger Closing, (iE) cooperating assist Parent in obtaining accountants’ comfort letters, including customary negative assurance from one or more of the Company’s independent accountants on customary terms and consistent with internal the accountants customary practice and external reasonably cooperate with Parent’s legal counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion opinions that such legal counsel may be required to deliver give in connection with the Debt Financing, (F) agree to enter into customary pay-off letters and perfection certificates and (x) deliver such officer’s certificates (including solvency certificates) and lien releases, if any, as are customary in each casefinancings of such type and (y) otherwise grant, solely and provide customary materials that facilitate the perfection or enforcement of, liens on, the assets of the Company or any of its Subsidiaries pursuant to such agreements as may be reasonably requested (including using such reasonable best efforts to provide original copies of all certificated securities (with transfer powers executed in blank)), provided that no obligation of the Company or any of its Subsidiaries under any such agreement, pledge or grant shall be effective until the Effective Time, (G) provide customary cooperation with the marketing efforts of Parent and its Financing Sources for all or any portion of the Financing or any Alternative Financing, (H) provide requested authorization letters with respect to the Company 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 documents distributed to prospective lenders) and (I) cooperate with the Financing Sources’ customary securities underwriting and secured lending due diligence investigation, to the extent reasonable customary 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 Agreementreasonable. The Company hereby consentsshall be given reasonable opportunity to review and comment upon any private placement memoranda or similar documents, on behalf or any materials for rating agencies, that include information about the Company or any of itself and the Group Companies, to the use of the logos of the Group Companies its Subsidiaries prepared in connection with the Debt Financing; provided that , and Parent shall include in such logos are used solely memoranda, documents and other materials, comments reasonably proposed by the Company. Notwithstanding anything to the contrary contained in a manner 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) other than with respect to authorization letters referred to above, enter into any binding agreement or commitment in connection with the Financing (or any Alternative Financing) that is not intended to, nor is reasonably likely to, harm or disparage conditioned on the Company’s occurrence of the Effective Time and does not terminate without liability to the Company or any of its Affiliates’ reputation Subsidiaries upon termination of this Agreement, (D) take any action that would (1) unreasonably interfere with the ongoing operations of the Company and its Subsidiaries, (2) cause any representation or goodwillwarranty in this Agreement to be breached, (3) cause any director, officer or employee of the Company or any of its Subsidiaries to incur any personal liability, (4) conflict with the Charter, the Bylaws (or similar organizational documents of any of the Subsidiaries of the Company) or any Laws, (5) 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 to which the Company or any of its Subsidiaries is a party, (6) require the Company to provide access to or disclose information that the Company determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries or (7) require the Company to prepare separate financial statements for any Subsidiary of the Company or change any fiscal period.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Multimedia Games Holding Company, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “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 8.11.2Effective Time, the Company shall use reasonable best efforts toPartnership Entities shall, and shall use reasonable best efforts to cause the Company their respective Subsidiaries and its and their respective Representatives to, in each case at BuyerParent’s sole cost and expense, provide to Buyer such all cooperation reasonably requested by Buyer that is reasonably necessary necessary, proper or advisable in arranging, obtaining and syndicating the Debt Financing, if connection with any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere financing by Parent or any of its Subsidiaries in connection with the operations of Transactions and the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with transactions contemplated by the Required Financial Information and other pertinent information regarding the Group Companies LRR Agreement as may be reasonably requested by Buyer for Parent or its Representatives. Without limiting the completion generality of the Debt Financingforegoing, the Partnership Entities shall, and shall cause their respective Subsidiaries and use commercially reasonable efforts to cause their respective Representatives to, (bi) participating furnish, as promptly as practicable, the report of the Partnership’s auditor on the most recently available audited consolidated financial statements of the Partnership and its Subsidiaries and use its commercially reasonable efforts to obtain the consent of such auditor to the use of such report in telephonic meetings accordance with normal custom and otherwise reasonably assisting with the preparation of appropriate practice, and use commercially reasonable efforts to cause such auditor to provide customary materials customary presentations, due diligence sessions comfort letters (including accounting due diligence sessionsproviding “negative assurance” comfort) and sessions with rating agencies drafts thereof to the underwriters, administrative agent, lenders, initial purchasers or placement agents, as applicable, in connection with such financing by Parent; (ii) use commercially reasonable efforts to furnish, as promptly as practicable, financial statements and other financial data of the Debt Financing Partnership as would be required by Regulation S-X and Regulation S-K promulgated under the Securities Act for a registered public offering to the extent consummate any offering(s) of securities contemplated by such financing; (iii) provide reasonable and customary for financings of such type, (c) reasonably assisting assistance in the preparation of (i) customary bank one or more confidential information memoranda, lender and investor presentationsprospectuses, offering documentsmemoranda, offering or private placement memoranda and other similar marketing documents and syndication materials (including the provision of authorization letters and a representation with respect to the presence or absence of material non-public information) reasonably requested by Parent, including by making available, at reasonable times and on reasonable advance notice, employees and advisors of the Partnership Entities; (iv) in a reasonable number of meetings, lender presentations, due diligence efforts for the Debt Financing sessions, drafting sessions and road shows, in each case, upon reasonable advance notice and at mutually agreed times; (iiv) customary authorization and representation letters, each as required assisting Parent in connection with the Debt Financing, authorizing the distribution preparation and registration of information to prospective lenders (but not executing) any pledge and containing a representation that the public side of such security documents, if anycurrency or interest hedging arrangements, do not include any information about any Group Company other definitive financing documents, or any securities documents as may be reasonably requested by Parent or the Financing Sources or otherwise reasonably facilitating the pledging 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”) collateral in connection with any capital markets transaction comprising a part the financing of the Debt Financing, Transactions and the transactions contemplated by the LRR Agreement (iiprovided that such documents will not take effect until the Effective Time); (vi) using commercially reasonable efforts to ensure that any syndication efforts benefit from existing lending and investment banking relationships; and (vii) providing all customary consents to documentation and other information about the inclusion of Partnership, the Partnership GP and their audit report respective Subsidiaries requested by Parent or the Financing Sources in respect of any financial statements connection with the financing of the Company Transactions and the Company Subsidiaries in any offering documents relating to transactions contemplated by the Debt Financing LRR Agreement 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” sanctions and anti-money money-laundering rules and regulations; provided that (x) none of the Partnership or any of its Subsidiaries shall be required to pay any commitment or other fee 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, including 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 PATRIOT Act and the requirements of 31 C.F.R. §1010.230Effective Time, (hy) facilitating and assisting in no obligations of the preparation and delivery Partnership or any of its Subsidiaries under any credit agreementscertificate, indenturesopinion, notescontract, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates indenture or other definitive documents relating document or instrument delivered pursuant to this Section 7.16 shall be effective until the Effective Time, and none of the Partnership or any of its Subsidiaries shall be required to take any action pursuant to this Section 7.16 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 Debt Financing relating Effective Time and (z) none of the Partnership or its senior officers shall be required to engage in any action that would interfere unreasonably with the Group Companiesbusiness of the Partnership and its Subsidiaries. Parent shall indemnify and hold harmless the Partnership and its Subsidiaries, Partnership GP and their respective businesses to be included in the definitive documents relating to the Debt Financing, Representatives from and assist with the execution against any 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 deliver all losses or damages suffered or incurred by them in connection with the Debt Financing, in each case, solely to the extent reasonable and customary for financings arrangement of such type, and (j) obtaining and providing documents to Buyer (including draft payoff letters) relating to the repayment any financing by Parent or any 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 its Subsidiaries in connection with the Debt Financing; provided that Transactions and the transactions contemplated by the LRR Agreement and any information utilized in connection therewith except (A) with respect to information supplied by the Partnership, its Subsidiaries and Representatives specifically for inclusion or incorporation by reference therein and/or (B) to the extent such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm or disparage losses and damages arise from the Companywillful misconduct of the Partnership’s or any of its AffiliatesSubsidiaries’ reputation or goodwillRepresentatives.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Eagle Rock Energy Partners L P)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “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 the MLP Entities shall, and shall cause their respective officers, employees, advisors and other representatives to Section 8.11.2, the Company shall use their reasonable best efforts to, and shall use reasonable best efforts to cause the Company Subsidiaries and its cooperate, at Parent’s expense, with Parent, Parent GP, Holdings and their respective Representatives to, advisors 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 connection with the arrangement of the Debt Financing, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies Financing or Alternative Financing as may be reasonably requested by Buyer for the completion of the Debt FinancingParent, Parent GP or Holdings, including using reasonable best efforts in (bi) participating in telephonic meetings and otherwise reasonably assisting with the preparation a reasonable number of appropriate and customary materials customary meetings, drafting sessions, presentations, due diligence sessions (including accounting road shows, rating agency and due diligence sessions) and , sessions with rating agencies prospective Debt Financing Sources and investors; (ii) furnishing Parent, Parent GP, Holdings and the Debt Financing Sources as promptly as practicable with the Required Financial Information, and other customary documents (in the case of such other documents, to the extent reasonably requested by Parent GP), to consummate the Debt Financing or the Alternative Financing at the time the Debt Financing or the Alternative Financing is to be consummated; (iii) reasonably assisting Parent, Parent GP, Holdings and the Debt Financing Sources in the preparation prior to commencement of the Marketing Period of (A) offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the Debt Financing or the Alternative Financing and (B) materials for rating agency presentations; (iv) reasonably cooperating with, and providing access to the extent reasonable and customary for financings of Parent Entities’ counsel to, MLP’s legal counsel in connection with any legal opinions that such type, legal counsel may be required to deliver in connection with the Debt Financing or Alternative Financing; (cv) reasonably assisting in the preparation of and executing and delivering any necessary pledge and security documents (iincluding all schedules thereto and any customary perfection certificates reasonably requested by Parent GP) and otherwise reasonably cooperating with Parent, Parent GP and Holdings in facilitating the granting of a security interest (and perfection thereof) in collateral, guarantees, mortgages, other definitive financing documents or other certificates or documents as may be reasonably requested by Parent GP; (vi) obtaining customary authorization letters of a member of MLP GP’s management with respect to the bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence using reasonable best efforts to obtain consents of accountants for use of their reports in any materials relating to the Debt Financing or Alternative Financing; (vii) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent GP necessary to permit the consummation of such Debt Financing or Alternative Financing; (viii) providing unaudited consolidated quarterly financial statements of MLP and its Subsidiaries (excluding footnotes) for each quarter ended at least 45 days before the Closing, consisting of a balance sheet, income statement and statement of cash flows; (ix) assisting Parent and Parent GP in obtaining legal opinions, surveys and title insurance as reasonably requested by Parent GP; and (iix) customary authorization providing Parent, Parent GP and representation letters, each Holdings with all documentation and other information with respect to MLP and its Subsidiaries as shall have been reasonably requested in writing by Parent GP at least eight Business Days prior to the Closing Date and that is 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 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 Alternative 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 samePatriot Act, in each casecase no later than three Business Days prior to the Closing Date. Notwithstanding the foregoing, solely the MLP Entities shall not be required to provide any cooperation or assistance under this Section 6.5 to the extent reasonable and customary for financings of such type, doing so would (i) cooperating unreasonably interfere with internal and external counsel the ongoing business or operations of Buyer MLP or any of its Subsidiaries, (ii) require MLP or any of its Subsidiaries to take any action that would conflict with or violate any law or subject any director, manager, officer or employee of MLP or any of its Subsidiaries to any actual personal liability, (iii) require providing access to or disclose information that MLP reasonably determines could jeopardize any attorney client privilege of, or conflict with any confidentiality requirements (not created in contemplation hereof) applicable to, MLP or any of its Subsidiaries, (iv) require any of the MLP Group Entities to take any action that would reasonably be expected to result in a breach of any Contract or 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 reasonable out-of-pocket costs that are reimbursed by Parent) or incur any other liability of any kind or provide or agree to provide any indemnity, (v) other than in connection with providing the customary back-up certificates authorization letter referred to in clause (vii) above, require any of the MLP Group Entities to execute prior to the Closing any definitive financing documents, including any credit or other agreements, pledge or security documents, or other certificates, legal opinions or documents or (vi) require MLP GP Board in place prior to Closing to enter into any resolutions or take similar action. MLP hereby consents to the use of its logos and factual information regarding any legal opinion that such counsel may be required to deliver logos of its Subsidiaries in connection with the Debt Financing or Alternative Financing. Parent shall indemnify, in each casedefend and hold harmless the MLP Entities and their respective Representatives from and against any and all liabilities, solely to the extent reasonable and customary for financings of such typelosses, and (j) obtaining and providing documents to Buyer damages, claims, costs, expenses (including draft payoff letters) relating to the repayment attorneys’ fees), interest, awards, judgments, penalties suffered or incurred and amounts paid by any 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 them in connection with the Debt Financing or Alternative Financing; , including any action taken in accordance with this Section 6.5(d) and any information utilized in connection therewith (other than historical financial information relating to the MLP and its Subsidiaries provided that in writing by the MLP or its Subsidiaries expressly for use in connection with the Debt Financing or Alternative Financing) or except to the extent 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 losses result from actual fraud of any of its Affiliatesthe MLP Entities or their respective Representatives. Parent shall, promptly upon request by MLP, reimburse the MLP Entities for all reasonable and documented out-of-pocket costs (including reasonable attorneys’ reputation or goodwillfees) incurred by the MLP Entities in connection with this Section 6.5(d).
Appears in 1 contract
Samples: Purchase Agreement and Plan of Merger (Arc Logistics Partners LP)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion (a) From the date hereof until the earlier of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (x) provide Seller and the Company termination of this Agreement in accordance with written notice that such Debt Financing has been obtained its terms and (y) deliver (or cause Closing, in order to be delivered) to Seller assist Parent 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 Merger Sub in obtaining its New 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, and shall cause its Subsidiaries to, use reasonable best efforts, at Parent’s sole expense, to cooperate with Parent and Merger Sub as reasonably requested by Parent in a manner that is customary in connection with the arrangement and implementation of the New Debt Financing, which is expected to be a public or institutional offering of Parent’s debt securities. Such reasonable best efforts toby the Company to provide such cooperation shall include, and shall use at the reasonable request of Parent, (i) 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) 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 any offering documents, offering memoranda, prospectuses, bank information memorandabooks, lender and investor presentations, ratings agency presentations and similar documents used in connection with the syndication and/or marketing of the New Debt Financing (including any authorization letter), provided that Parent is solely responsible for the content of any pro forma financial statements, synergies, projections or adjustments contained therein, in each case other than any such content that consists of, or is derived from, historical financial information of the Company, (ii) furnishing Parent and its debt financing sources, promptly after Parent’s request, with the Required Financial Statements and consenting to the inclusion or incorporation by reference in any SEC filing and/or offering materials related to the New Debt Financing of the Required Financial Statements, (iii) using reasonable best efforts to participate in and provide reasonable assistance in connection with the due diligence of the Debt Financing Sources for the New Debt Financing; provided, however (A) that in the case of any non-public or otherwise confidential information regarding the Company or any of its Subsidiaries provided to Parent in connection with this clause (iii), Parent provides the Company with a draft of any disclosure that is based on or references such information included in any offering documents, offering memoranda, prospectuses, bank books, lender and investor presentations, ratings agency presentations and similar documents used in connection with the offering of Parent’s debt securities reasonably in advance of distribution thereof, (B) confidential information regarding the Company or private placement memoranda any of its Subsidiaries of the type included in such draft offering documents, offering memoranda, prospectuses, bank books, lender and other investor presentations, ratings agency presentations or similar marketing documents is customarily disclosed or otherwise required to be disclosed in offering documents, offering memoranda, prospectuses, bank books, lender and investor presentations, ratings agency presentations or similar documents for public offerings of debt securities or offerings of debt securities pursuant to Rule 144A of a type similar to that being arranged by Parent and (B) to the extent the Company determines that it is necessary or desirable for Company (or its Subsidiaries) to file a Current Report on Form 8-K pursuant to the Securities Exchange Act of 1934, as amended, that contains material non-public information with respect to the Company and its Subsidiaries contained in any such offering documents, offering memoranda, prospectuses, bank books, lender and investor presentations, ratings agency presentations or similar documents, Parent shall give Company (or its Subsidiary (including following the consummation of the Transactions)) a reasonable opportunity to file such Current Report on Form 8-K before Parent distributes such offering documents, offering memoranda, prospectuses, bank books, lender and investor presentations, ratings agency presentations or similar documents, (iv) using reasonable best efforts with respect to the participation by members of management of the Company with appropriate seniority in any presentations, road shows, sessions with rating agencies and due diligence efforts for the Debt Financing meetings, as applicable, in each case, upon reasonable advance notice, during normal business hours, and at a mutually agreed time, (iiv) customary authorization and representation letters, each solely as required in connection with the Debt Financingoffering of Parent’s debt securities, authorizing assisting Parent in securing 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 customary cooperation of the United States federal independent accountants of the Company and state securities laws if any Group Company were a public reporting company, (d) using reasonable best efforts to cause the Company’s its Subsidiaries by providing customary authorization letters or auditor representation letters and requesting that such independent registered accounting firm to accountants provide customary assistance, including (i) providing customary comfort letters (including “negative assurance assurance” comfort” ) and “change period comfort”) consents for use of their reports, on customary terms and consistent with their customary practice in connection with any capital markets transaction comprising a part such offering of the Debt FinancingParent’s debt securities, (iivi) providing customary consents documents reasonably requested by Parent relating to the inclusion of their audit report in respect repayment or refinancing of any financial statements indebtedness for borrowed money of the Company or any of its Subsidiaries to be repaid or refinanced on the Closing Date and the Company Subsidiaries in release of related liens or guarantees, including customary payoff letters and evidence that notice of any offering documents relating repayment has been timely delivered to the Debt Financing holders of such indebtedness in each case in accordance with the terms of the definitive documents governing such indebtedness, and (iiivii) 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 providing at least three (3) Business Days prior to in advance of the Closing all Date such documentation and other information about the Company and its Subsidiaries as is reasonably requested in writing by Buyer Parent at least ten (10) 10 Business Days prior to in advance of the Closing Date in connection with the New Debt Financing that relates to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act and the requirements of 31 C.F.R. §1010.230ACT, (h) facilitating and assisting in the preparation and delivery of any credit agreementsand, 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 required, a beneficial ownership certificate (substantially similar in form and customary for financings substance to the form of such typeCertification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association) in respect of any of the Company or any of its Subsidiaries that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation (i) cooperating with internal and external counsel of Buyer in connection with providing customary back31 C.F.R. § 1010.230). All non-up certificates and factual public or otherwise confidential information regarding any legal opinion that such counsel may the Company obtained by the Parent and Merger Sub pursuant to this Section 8.11 shall be required to deliver in 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 kept confidential in accordance with the terms of this the Confidentiality 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 Affiliates’ reputation or goodwill.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) 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 8.11.2Company shall, the Company and shall use reasonable best efforts cause its Subsidiaries and its and their officers, directors and employees to, and shall use its reasonable best efforts to cause the Company Subsidiaries and its and their respective other Representatives to, in each case at Buyer’s sole expense, use reasonable best efforts to provide to Buyer such all reasonable 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) 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 (ii) customary authorization and representation letters, each as required Parent in connection with the Debt Financing, and such reasonable best efforts shall include (i) furnishing Parent with financial and other pertinent information regarding the Company and its Subsidiaries, including providing Parent with the information required pursuant to the Debt Commitment Letter (all such information, the “Required Information”), and any supplements to the Required Information reasonably requested by Parent; (ii) participating in a reasonable number of meetings and due diligence sessions; (iii) furnishing Parent with pertinent information regarding the assets and operations of the Company and its Subsidiaries as is customary in connection with the Debt Financing and any security required therefor; (iv) using reasonable best efforts to obtain such UCC, bankruptcy, litigation and similar lien searches reasonably requested by Parent and consistent with the requirements of Parent or its lenders; (v) taking all corporate actions (including amendments to the Organizational Documents of the Company’s wholly owned Subsidiaries) reasonably requested by Parent to permit the consummation of the Debt Financing; (vi) causing the Company to execute and deliver any pledge and security documents, definitive financing documents or other certificates or documents or otherwise facilitate the pledging of collateral for delivery at the consummation of the Debt Financing on and as of the Closing, in each case as may be reasonably requested by Parent; (vii) using reasonable best efforts to provide, if requested by Parent, authorization letters to the Financing Sources 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, lenders; (dviii) using reasonable best efforts to cause the Company’s independent registered accounting firm to provide customary assistanceprovide, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in 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 Closing, all documentation and other information about Company and each of its Subsidiaries as is reasonably requested in writing by Parent which relates to the extent required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsregulations including without limitation the USA PATRIOT ACT, including the PATRIOT Act and the requirements of 31 C.F.R. §1010.230provided, that if any request is made with respect to such materials less than thirty (h30) 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 Business Days prior to the Debt Closing, such documentation and information shall be provided as soon as practicable after a reasonable request therefor; and (ix) using reasonable best efforts to take all actions reasonably necessary to permit the Financing Sources to evaluate Company’s inventory, current assets, cash management and accounting systems, policies and procedures 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 thereto. Any information provided by Company in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may this Section 5.18(b) shall be required to deliver prepared in 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 Affiliates’ reputation or goodwillgood faith.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Select Energy Services, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “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 (x) cause its Subsidiaries and (y) use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives officers, directors, employees and accountants to, in each case at BuyerParent’s sole cost and expense, use reasonable best efforts to provide to Buyer such cooperation as is reasonably requested by Buyer that is reasonably necessary Parent or Acquisition Sub to assist Parent and Acquisition Sub in arranging, obtaining and syndicating connection to Parent’s efforts to obtain the Debt Financing, if Financing or any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies)Replacement Financings, including as promptly as reasonably practicalusing reasonable best efforts to: (i) furnish, (a) furnishing Buyer with or cause to be furnished to, Parent, Acquisition Sub and/or its Debt Financing Sources the Required Financial Information and all other customary pertinent financial, business and other information regarding the Group Companies Company and its Subsidiaries as may be reasonably requested by Buyer for the completion Parent, (ii) cause members of senior management of the Debt FinancingCompany to participate (which participation shall be limited to teleconference or virtual meeting platforms) in a reasonable number of lender meetings, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary lender presentations, due diligence sessions, road shows, drafting sessions (including accounting due diligence sessions) and sessions with rating agencies agency meetings, in connection with the Debt Financing to the extent each case, upon reasonable advance notice, during normal business hours and customary for financings of such typeat mutually agreed locations and times, (ciii) reasonably assisting provide reasonable assistance to Parent in the its preparation of (i) customary bank information memorandarating agency presentations, lender and investor presentations, offering documentsmemoranda, offering or private placement customary bank information memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as reasonably required in connection with the Debt Financing, authorizing Financing or any Replacement Financings (including by reasonably assisting in the distribution of information to prospective lenders and containing a representation that the public side preparation of such documents, if any, materials that do not include any information about any Group Company or any securities of any Group Company that would constitute material non-public information), in each case, solely with respect to information within relating to the meaning of Company (to the United States federal extent related to its business) and state securities laws if any Group Company were a public reporting companyits Subsidiaries, (div) using reasonable best efforts delivering information and documentation related 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 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 its Subsidiaries in any offering documents relating that is required by paragraph 6 of Exhibit D to the Debt Financing Commitment Letter (or any successor provision thereof) 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 requested by Parent or 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 Sources at least ten (10) Business Days prior to the Closing Date with respect to the extent required by U.S. regulatory authorities compliance under applicable “know your customer” ”, beneficial ownership and anti-money laundering rules and regulations, including the USA PATRIOT Act Act, which information shall be provided no later than three (3) Business Days prior to the Closing Date), (v) provide reasonable and customary assistance with Parent’s preparation, negotiation and execution of definitive financing documentation and the requirements of 31 C.F.R. §1010.230, schedules and exhibits thereto (h) facilitating and assisting in the preparation and delivery of any credit agreements, including indentures, notes, underwriting loan agreements, purchase agreements, security documentation, guarantees, schedulescollateral agreements, perfection hedging arrangements, customary officer’s certificates and corporate resolutions, as applicable) as may reasonably be requested by Parent or Acquisition Sub and subject to the occurrence of the Closing, (vi) provide reasonable and customary assistance with facilitating the pledging of collateral in connection with the Debt Financing or any Replacement Financings, including executing and delivering any customary pledge and security documents, currency or interest hedging arrangements or other customary definitive financing documents, and documents as may be reasonably requested by Parent or Acquisition Sub, (vii) at the reasonable request of Parent or Acquisition Sub, and subject to the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), using reasonable best efforts to file a Form 8-K with the SEC disclosing information identified by Parent or Acquisition Sub relating to the Debt Financing relating to the Group Companies, Company and their respective businesses its Subsidiaries for purposes of permitting such information to be included in marketing or offering materials or memoranda for the definitive documents relating Debt Financing or any Replacement Financings to be provided to potential investors who do not wish to receive material nonpublic information with respect to any of Parent, Acquisition Sub, the Company, any of their respective Affiliates or any of their respective securities, it being understood that such information shall not include projections or other information not customarily included in a Rule 144A offering memorandum and (viii) using reasonable best efforts to supplement the Required Information on a reasonably current basis to the Debt Financingextent that any Required Information, to the knowledge of the Company, when taken as a whole and assist in light of the circumstances under which such statements were made, contains any material misstatement of fact or omits to state any material fact necessary to make such information not materially misleading; provided, that the such requested cooperation shall not (A) cause any representation or warranty in this Agreement to be breached, (B) cause any condition to Closing to fail to be satisfied or otherwise cause any breach of this Agreement, (C) require the Company or any of its Subsidiaries or their respective Representatives to (i) execute, deliver, enter into, approve or perform any agreement, commitment, certificate, document or instrument (excluding any 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 Company, each of its Subsidiaries and their respective Representatives and Affiliates from any liability in connection with the execution and delivery unauthorized use by the recipients thereof of the sameinformation set forth in any such bank confidential information memoranda or similar memoranda or report distributed in connection therewith)), or modification of any agreement, commitment, document or instrument, in each case, solely that would be effective prior to the extent reasonable and customary for financings of such typeEffective Time, (iii) cooperating with internal and external counsel deliver or cause the delivery of Buyer any legal opinions, (iii) deliver or cause the delivery of any reliance letters or any certificate as to solvency or any other certificate in connection with providing customary back-up certificates and factual information regarding to the Debt Financing or any legal opinion Replacement Financings, in each case that such counsel may would be required effective prior to the Effective Time, (iv) adopt any resolutions, execute any consents or otherwise take an corporate or similar action or deliver any certificate, in connection with the Debt Financing, any Replacement Financings or the incurrence of indebtedness thereby, in each case, solely that would be effective prior to the extent reasonable and customary for financings Effective Time or (v) pay any commitment or other similar fee, incur or reimburse any costs or expenses or incur any other liability or obligation 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 any kind or give any indemnities in connection with the Debt FinancingFinancing or any Replacement Financings, including under any certificate, agreement, arrangement, document or instrument related thereto, in each case, that would be effective prior to the Effective Time, (D) require the Company or any of its Subsidiaries or their respective Affiliates and Representatives to deliver any certificates or take any action pursuant to this Section 6.12 if doing so could result in liability to the Company or such Subsidiary, Affiliate or Representatives, (E) require the Company or any of its Subsidiaries to provide, or cause to be provided, any information the disclosure of which is prohibited or restricted under applicable Law or any binding agreement with a third party or that is legally privileged or consists of attorney work product or could reasonably be expected to result in the loss of any attorney-client privilege, (F) require the Company or any of its Subsidiaries to take any action that will conflict with or violate its organizational documents or any Laws or result in a violation or breach of, or default under, any Company Material Contract (other than any Company Material Contract being entered in contemplation hereof), (G) require the Company or any of its Subsidiaries to enter into or approve any binding commitment prior to the Effective Time, (H) unreasonably interfere with the ongoing operations of the Company and its Subsidiaries or (I) prepare or deliver any financial statements or other financial data other than the Required Information. Neither the Company nor any of its Affiliates or Subsidiaries shall have any liability to Parent or Acquisition Sub in respect of any financial statements, other financial information or data or other information provided pursuant to this Section 6.12. Unless otherwise agreed by the Company, all non-public or other confidential information provided by the Company to Parent or its Affiliates pursuant to this Section 6.12 shall be kept confidential in accordance with the Confidentiality Agreement. 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 out-of-pocket reasonable and documented expenses and costs (including reasonable outside attorneys’ fees and disbursements) incurred in connection with the Company’s or its Affiliates’ or Representatives’ obligations under Section 6.11 or this Section 6.12 and shall indemnify and hold harmless the Company, its Affiliates and their respective Representatives from and against any and all losses, damages, claims, costs (including cost of investigation), settlement payments, injuries, liabilities, judgements, awards, penalties, fines or expenses (including attorneys’ fees and disbursements) suffered or incurred by any of them as a result of, or in connection with, (1) such cooperation, (2) the Debt Financing or any Replacement Financings, (3) any information used in connection with the Debt Financing (except with respect to written information provided by the Company or any of its Affiliates specifically for inclusion in offering materials relating to the Debt Financing or any Replacement Financings) and (4) any action taken by any of them at the request of Parent or Acquisition Sub pursuant to this Section 6.12, except, to the extent such losses, damages, claims, costs (including cost of investigation), settlement payments, injuries, liabilities, judgements, awards, penalties, fines or expenses (including reasonable outside attorneys’ fees and disbursements) arose from the fraud or willful misconduct of the Company or any of its Affiliates or Representatives, as determined in a final, non-appealable judgment of a court of competent jurisdiction. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing or any Replacement Financings; provided that such logos are used solely in the ordinary course as is customary for such purpose and in a manner that is not intended tointended, nor is or reasonably likely tolikely, harm to harm, disparage or disparage otherwise adversely affect the Company, any of its Subsidiaries or their reputation or goodwill. Notwithstanding anything contained herein to the contrary, the condition set forth in Section 7.2(c), as it applies in respect of the Company’s obligations under this Section 6.12, shall be deemed satisfied unless the Company has knowingly and willfully materially breached its obligations under this Section 6.12 and which such breach was a proximate cause in Parent not being able to obtain the Debt Financing or any of its Affiliates’ reputation or goodwillReplacement Financings.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) 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 The Company shall use reasonable best efforts to, and shall use its reasonable best efforts to provide, and to cause the Company its Subsidiaries and its and each of their respective Representatives toto provide, in each case at Buyer’s sole expenseto Parent and Purchaser, provide to Buyer such reasonable 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for Parent and Purchaser and that is necessary or customary, proper or advisable in connection with the completion arrangement of any loan transaction or capital markets debt financing (whether public or private) undertaken by Parent in contemplation of the Debt consummation of the Transaction (any such financing, the “Financing”), including reasonable cooperation, in each case to the extent reasonably requested: (i) to provide, within a reasonable amount of time following such reasonable request, to Parent, Purchaser and their Financing Sources material financial and other pertinent information with respect to the Company and its Subsidiaries and the Transactions, including information and projections prepared by the Company relating to the Acquired Corporations required in connection with the preparation of the Finance Offering Documents and diligence documentation reasonably requested by persons in connection with the Financing; (ii) to cooperate with the marketing efforts of Parent, Purchaser and their Financing Sources for any of the Financing, including causing its Representatives to participate, during normal working hours and upon reasonable notice, in meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, a reasonable number of times; (biii) participating in telephonic meetings to assist with the preparation of materials relating to the Acquired Corporations for rating agency presentations, lender presentations, offering documents, information memoranda, road show presentations and otherwise reasonably similar documents (including assisting with the preparation of appropriate and customary materials customary presentationspro forma financial statements meeting the requirements of SEC Regulation S-X) necessary, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies proper or advisable in connection with the Debt Financing (collectively, the “Finance Offering Documents”); (iv) to assist Parent in obtaining consents of the Company’s auditors for use of their reports in any materials relating to the extent reasonable Financing and customary for financings of such type, “comfort letters” (c) reasonably assisting in the preparation of (i) including customary bank information memoranda, lender negative assurances and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) 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“bring-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 down” letters from the Company’s independent registered accounting firm accountants on customary terms); and (v) to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in 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 other 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 Act. Notwithstanding 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 typeforegoing, (i) cooperating with internal no obligation of the Company or its Subsidiaries under any certificate, document or instrument executed pursuant to the foregoing shall be effective until the Offer Acceptance Time (or such later time set forth in such certificate, document or instrument), and external counsel neither the Company nor its Subsidiaries nor any of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may their respective Representatives shall be required to deliver take any action under any such certificate, document or instrument that is not contingent upon the consummation of the Offer (including the entry into any agreement that is effective before consummation of the Offer) or that would be effective prior thereto or take any corporate actions prior to the Closing, (ii) nothing herein shall require cooperation to the extent that such cooperation would, in the good faith determination of the Company, interfere unreasonably with the business or operations of the Company or its Subsidiaries, (iii) neither the Company nor any of its Subsidiaries shall be required to waive or amend any terms of this Agreement, (iv) neither the Company nor any of its Subsidiaries shall be required to take any action that will conflict with or violate its organizational documents or any applicable Legal Requirement, and (v) neither the Company nor any of its Subsidiaries shall be required to issue any offering or information document (other than as required to comply with the Company’s obligations pursuant to this Section 6.13). None of the Company nor any of its Subsidiaries shall be required to take any action that would subject it to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment (other than reasonable out-of-pocket costs that will be reimbursed by Parent pursuant to clause (b) or incur any other liability or provide or agree to provide any indemnity in connection with the Debt Financing, in each case, solely Financing or any of the foregoing that would be effective prior 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 AgreementClosing. The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the logos of the Group Companies Company and its Subsidiaries in connection with the Debt syndication or marketing of the Financing; provided that such logos are used solely in a manner that is reasonable and customary in connection with a Financing, and any in event, not intended to, nor is reasonably likely to, to harm or disparage the Company’s , its Subsidiaries or any of its Affiliates’ reputation or goodwill.their marks. 57
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion (a) During the period from the date hereof through the earlier of the Purchase Price (Closing Date or the “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 date of all arrangements pursuant to which any Financing Parties shall have committed to provide any portion termination 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 8.11.2Agreement, the Company shall use reasonable best efforts toto provide, and shall cause its Subsidiaries and use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives toto provide, in each case at BuyerParent’s sole expense, provide to Buyer such customary cooperation as may be reasonably requested in writing (which, for purposes of this Section 6.14 may be through email) by Buyer that is reasonably necessary Parent in arranging, obtaining and syndicating connection with the arrangement of the Debt Financing, if any including using reasonable best efforts to: (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the operations of the Group Companies), including i) as promptly as reasonably practical, (a) furnishing Buyer with practicable furnish the Required Financial Information and other pertinent and customary information regarding the Group Companies Company and its Subsidiaries as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies Parent in connection with the Debt Financing to the extent reasonable and customary for financings in similar financings; (ii) (A) upon reasonable notice and at reasonable times and locations, participate in a reasonable number of such typemeetings and presentations with arrangers or agents, (c) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda prospective lenders and other similar investors and sessions with rating agencies, 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 documents and due diligence efforts for any of the Debt Financing (including use of commercially reasonable efforts to ensure that the Debt Financing Sources and their advisors and consultants shall have sufficient access to the Company and its Subsidiaries to complete any necessary audits or appraisals of the assets of the Company and its Subsidiaries (iiincluding with respect to any assets comprising any “borrowing base” in respect of the Debt Financing)), (B) customary authorization and representation letters, each as required assist Parent in obtaining ratings in connection with the Debt Financing, (C) reasonably cooperate in the preparation of materials for rating agency presentations, offering memoranda, marketing materials, bank information memoranda, lender presentations or similar documents in connection with the Debt Financing (collectively, the “Offering Documents”) (including (x) confirming the absence of material non-public information relating to the Company and its Subsidiaries or their securities contained therein upon request by Parent and (y) the delivery of customary authorization letters authorizing the distribution of information to prospective lenders or investors), (D) assist Parent with the preparation of pro forma financial information and containing a representation pro forma financial statements to the extent reasonably requested by Parent or the Debt Financing Sources to be included in any marketing materials or offering documents or of the type required by the Debt Commitment Letters (provided that the public side of such documents, if any, do Company and its Subsidiaries shall not include any information about any Group Company or any securities be responsible for the preparation of any Group Company that would constitute material non-public information within pro forma financial statements or pro forma adjustments in connection with the meaning of the United States federal Debt Financing), and state securities laws if any Group Company were a public reporting company, (dE) using reasonable best efforts to cause request and facilitate the Company’s independent registered accounting firm auditors to (1) provide customary assistance, including (ix) providing customary auditors consents and reports reasonably required for the Offering Documents and (y) comfort letters (including customary “negative assurance comfortassurance” comfort and “change period comfort”) with respect to the financial information relating to the Company and its Subsidiaries contained in the Offering Documents that are customary in connection with any capital markets transaction comprising a high-yield financings of the type contemplated as 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 (2) attend a reasonable number of accounting due diligence and drafting sessions; (iii) reasonable assistance provide Parent and cooperation the Debt Financing Sources, at least four (4) Business Days prior to Buyer the Closing (to the extent requested at least eight (8) Business Days prior to the Closing), with all documentation and other information with respect to the Company and its Subsidiaries as shall have been reasonably requested in writing by Parent or any auditor due diligenceDebt Financing Source 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; and (eiv) (A) take all corporate actions, subject to and conditioned on the occurrence of the Closing, the taking of customary corporate actions reasonably necessary required to permit the consummation of and funding the Debt Financing (it being understood that no such action shall be required of the Debt FinancingCompany Board prior to the Closing), (fB) reasonably assisting cooperate in Buyer’s efforts to satisfy satisfying the conditions precedent set forth in the Debt Commitment Letters or any definitive document relating to the Debt Financing Financing, to the extent the satisfaction of such condition requires the cooperation of, or is within the control of, the Group CompaniesCompany and its Subsidiaries and (C) assist with the preparation of definitive financing documentation, to the extent reasonably requested by Parent, and execute and deliver any such documents (gincluding a certificate of the chief financial officer of the Company with respect to solvency matters in the form set forth as an exhibit to the Debt Commitment Letters)) delivering as may be reasonably requested by Parent. Notwithstanding anything to Buyer at least three the contrary in this Section 6.14(a), nothing will require the Company to provide (or be deemed to require the Company to prepare) any (1) pro forma financial statements; (2) information regarding any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other post-Closing pro forma adjustments; (3) Business Days prior description of all or any portion of the 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 Closing all such documentation and Financing; (5) other 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 Rules 3-10 or 3-16 of Regulation S-X under applicable “know your customer” the Securities Act, any Compensation Discussion 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 Analysis or other definitive documents relating to information required by Item 402 of Regulation S-K under 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 deliver in 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 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; or (6) any information with respect to any Person other than the Company and its Affiliates’ reputation or goodwillSubsidiaries (the foregoing clauses (1) through (6) is referred herein as “Excluded Information”).
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determinePrior to and until the Closing, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xA) provide Seller and the Company with written notice that such Debt Financing has been obtained and (y) deliver (shall furnish, or cause to be delivered) to Seller and the Company truefurnished to, 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 thatParent, in no event shall the receipt of such Acquisition Sub and/or its Debt Financing Sources, the Required Information, including, without limitation, the contemplated financial statements by no later than such financial statements would be a condition required to Closing be filed with the SEC 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, (B) the Company shall use reasonable best efforts to, and shall (x) cause its Subsidiaries and controlled or under common control Affiliates and (y) use reasonable best efforts to cause their respective officers, directors, employees and accountants to, at Parent’s sole cost and expense (excluding any costs and expenses with respect to financial statements, financial information or other materials prepared prior to the date hereof or, after the date hereof, that the Company Subsidiaries and its and their respective Representatives towould have prepared in the ordinary course of business), in each case at Buyer’s sole expense, to provide to Buyer such customary cooperation as is reasonably requested by Buyer that is reasonably necessary Parent or Acquisition Sub to assist Parent and Acquisition Sub in arranging, obtaining and syndicating connection to Parent’s efforts to obtain the Debt Financing, if any including using reasonable best efforts to do the following (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with to the operations of the Group Companies), including as promptly as extent so reasonably practical, requested): (i) (a) furnishing Buyer with provide customary “flash” or “recent development” revenue information to the Required Financial Information extent reasonably available (which may be provided in a reasonable range or estimate and may be provided on a non-GAAP basis) for any fiscal quarter ending after the date hereof and prior to the Closing, and (b) all other customary pertinent financial, business and other pertinent information regarding the Group Companies Company and its Subsidiaries as may be reasonably requested by Buyer for Parent and, including in any event the completion financial statements required under Sections 9 and 10 of Annex D of the Debt FinancingCommitment Letter, (bii) participating cause members of senior management of the Company to participate in telephonic meetings and otherwise reasonably assisting with the preparation a reasonable number of appropriate and customary materials customary lender meetings, lender presentations, due diligence sessions (including accounting due diligence sessions) ), road shows, drafting sessions and sessions with rating agencies agency meetings, in connection with the Debt Financing to the extent each case, upon reasonable advance notice, at mutually agreed locations and customary for financings of such typetimes (including by electronic means), (ciii) reasonably assisting provide reasonable assistance to Parent in the its preparation of (i) customary bank information memorandarating agency presentations, lender and investor presentations, offering documentsmemoranda, offering or private placement customary bank information memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as reasonably required in connection with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side including by reasonably assisting in preparation of such documents, if any, do not materials that don’t include any information about any Group Company or any securities of any Group Company that would constitute material non-public information, in each case, solely with respect to information within relating to the meaning of Company (to the United States federal extent related to its business) and state securities laws if any Group Company were a public reporting companyits Subsidiaries, (div) using reasonable best efforts deliver information and documentation related 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 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 its Subsidiaries that is required by the Company Subsidiaries in Debt Commitment Letter (or any offering documents relating to successor provision thereof) and reasonably requested by Parent or 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 Sources at least three eight (3) 8) 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 Date with respect to the Closing to the extent required by U.S. regulatory authorities compliance under applicable “know your customer,” beneficial ownership and anti-money laundering rules and regulations, including the USA PATRIOT Act and Act, which information shall be provided no later than three (3) Business Days prior to the requirements of 31 C.F.R. §1010.230Closing Date, (hv) 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 cooperate with the Debt Financing relating to the Group CompaniesSources’ due diligence, 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 deliver reasonably requested in connection with the Debt Financing, (vi) to the extent required by the Debt Financing Sources, execute and deliver customary authorization to the Debt Financing Sources with respect to any bank information memorandum, (vii) provide reasonable and customary assistance with Parent’s preparation, negotiation and execution of definitive financing documentation and the schedules and exhibits thereto (including indentures, loan agreements, guarantees, collateral agreements, hedging arrangements, payoff letters and release agreements, customary officer’s certificates and corporate resolutions or other corporate actions, as applicable) as may reasonably be requested by Parent or Acquisition Sub and subject to the occurrence of the Closing, (viii) provide reasonable and customary assistance with facilitating the pledging of collateral (including possessory collateral) in connection with the Debt Financing, including executing and delivering as of the Closing Date any customary pledge and security documents, currency or interest hedging arrangements or other customary definitive financing documents, and documents as may be reasonably requested by Parent or Acquisition Sub and delivering or causing to be delivered certificated equity interests of material domestic Subsidiaries of the Company, (ix) take all reasonable actions necessary to permit the Debt Financing Sources to evaluate the Company’s and its Subsidiaries’ current assets, cash management and accounting systems, policies, and procedures relating thereto for the purposes of establishing collateral arrangements as of the Closing, including facilitating customary field examinations and inventory and equipment appraisals by the Debt Financing Sources, (x) supplement the Required Information on a reasonably current basis to the extent that any Required Information, to the knowledge of the Company, when taken as a whole and in light of the circumstances under which such statements were made, contains any material misstatement of fact or omits to state any material fact necessary to make such information not materially misleading, (xi) cause the independent auditors of the Company to assist and cooperate with Parent in connection with the Debt Financing, including by providing consent to offering memoranda that include or incorporate the Company’s consolidated financial information and their reports thereon, and customary comfort letters (including “negative assurance” and change period comfort) with respect to financial information relating to the Company and its Subsidiaries and (xii) deliver customary CFO certificates or similar certificates with respect to certain financial information in the offering documents to the extent not otherwise covered by the “comfort letters” described herein; provided that the such requested cooperation shall not (1) require the Company or any of its Subsidiaries or their respective representatives to (i) execute, deliver, enter into, approve or perform any agreement, commitment, certificate, document or instrument (excluding any customary authorization letters or representation letters to the Company’s independent auditors), or modification of any agreement, commitment, document or instrument, in each case, solely that would be effective prior to the Effective Time (in each case other than in connection with the Debt Offers (as defined below) or otherwise in accordance with Section 5.19, the items delivered in clauses (B)(xi) and (B)(xii) above or that which is Required Information), (ii) deliver or cause the delivery of any legal opinions, deliver or cause the delivery of any reliance letters or any certificate as to solvency or any other certificate in connection to the Debt Financing (in each case other than in connection with the Debt Offers, or otherwise in accordance with Section 5.19 hereof or the items delivered in clauses (B)(xi) and (B)(xii) above), (iii) adopt any resolutions, execute any consents or otherwise take any corporate or similar action or deliver any certificate, in connection with the Debt Financing or the incurrence of indebtedness thereby, in each case, that would be effective prior to the Effective Time (in each case other than in connection with the Debt Offers, or otherwise in accordance with Section 5.19 hereof or the items delivered in clauses (B)(xi) and (B)(xii) above), (iv) pay any commitment or other similar fee, incur or reimburse any costs or expenses or incur any other liability or obligation of any kind or give any indemnities in connection with the Debt Financing, including under any certificate, agreement, arrangement, document or instrument related thereto, in each case, that would be effective prior to the Effective Time or (v) prepare stand-alone financial statements for any Subsidiaries of the Company or prepare financial statements which the Company has not historically prepared, (2) require the Company or any of its Subsidiaries to take any action that will conflict with or violate its organizational documents or any Laws or result in a breach of, or default under, any Contract (other than any Company Material Contract being entered in contemplation hereof) or otherwise breach any of the Company’s representations, warranties, covenants or agreements under this Agreement, (3) require the Company or any of its Subsidiaries to enter into or approve any binding commitment prior to the Effective Time, or (4) unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. In the event this Agreement is terminated pursuant to Section 7.1 (other than as a result of a breach by the Company) 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 out-of-pocket reasonable and documented expenses and costs (including reasonable outside attorneys’ fees and disbursements) incurred in connection with the Company’s or its Affiliates’ or representatives’ obligations under Section 5.17 or this Section 5.18 and Parent and Acquisition Sub shall indemnify and hold harmless the Company, its Affiliates and their respective representatives from and against any and all losses, damages, claims, costs (including cost of investigation), settlement payments, injuries, liabilities, judgements, awards, penalties, fines or expenses (including reasonable outside attorneys’ fees and disbursements) suffered or incurred by any of them as a result of, or in connection with, (1) such cooperation or otherwise in connection with the Company’s or its Affiliates’ or Representatives’ obligations under Section 5.17 or this Section 5.18, (2) the Debt Financing, and (3) any information used in connection with the Debt Financing except, to the extent reasonable and customary for financings of such typelosses, and (j) obtaining and providing documents to Buyer damages, claims, costs (including draft payoff letterscost of investigation), settlement payments, injuries, liabilities, judgements, awards, penalties, fines or expenses (including reasonable outside attorneys’ fees and disbursements) arose from (a) historical financial information relating to the repayment Company and its Subsidiaries expressly for use in connection with the Debt Financing or (b) the fraud, bad faith, or willful misconduct of the Indebtedness and the release Company, its Subsidiaries, or any of related guarantees and Liens their respective Affiliates or representatives as finally determined in accordance with the terms a non-appealable judgment by a court of this Agreementcompetent jurisdiction. The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the its and its Subsidiaries’ logos of the Group Companies in connection with the Debt Financing; provided that such logos are used solely in the ordinary course as is customary for such purpose and in a manner that is not intended tointended, nor is or reasonably likely tolikely, harm to harm, disparage or disparage otherwise adversely affect the Company’s , any of its Subsidiaries or their reputation or goodwill. The Company, its Affiliates and their respective Representatives shall be given a reasonable opportunity to review all presentations, bank information memoranda and similar marketing materials, materials for rating agencies and other documents prepared by or on behalf of or used by Parent or Acquisition Sub or any of their Affiliates or used or distributed to any Debt Financing Source or any of its Affiliates in connection with the Debt Financing that include any logos of or information about or provided by the Company, its Affiliates’ reputation , or goodwilltheir respective Representatives; provided that any authorization letters (or the bank information memoranda in which such letters are included) shall include language that exculpates the Company, its Affiliates and their respective Representatives from any liability in connection with the unauthorized use by the recipients thereof of the information set forth in any such bank confidential information memoranda or similar memoranda or report distribution in connection therewith. Notwithstanding anything to the contrary contained herein, in no event shall the Company be deemed to have breached its obligations hereby in the event Parent does not prepare the pro forma financial statements as part of the Required Information.
Appears in 1 contract
Samples: Agreement and Plan of Merger (RR Donnelley & Sons Co)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) 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 The Company shall use its reasonable best efforts to, and shall cause each of its Subsidiaries to use their reasonable best efforts to, and shall use its reasonable best efforts to cause the Company Subsidiaries and its and Representatives to use their respective Representatives reasonable best efforts to, provide all cooperation that is customary in each case at Buyer’s sole expense, provide to Buyer such cooperation connection with the arrangement of the Debt Financing as may be reasonably requested in writing by Buyer that is reasonably necessary in arranging, obtaining and syndicating the Debt Financing, if any Parent (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with the conduct of the business and ongoing operations of the Group CompaniesCompany and its Subsidiaries), including as promptly as reasonably practical(i) participation in a reasonable number of meetings, due diligence sessions, lender presentations and sessions with rating agencies, (aii) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary for rating agency presentations, due diligence sessions (including accounting due diligence sessions) bank information memoranda and sessions with rating agencies similar documents required in connection with the Debt Financing (provided that any such rating agency presentations, bank information memoranda and similar documents shall contain disclosure reflecting the Surviving Corporation or its Subsidiaries as the obligor), (iii) furnishing Parent and its Debt Financing sources with (A) such pertinent and customary information (other than financial information), to the extent reasonable reasonably available to the Company, regarding the Company and customary for financings of such type, (c) its Subsidiaries as may be reasonably assisting requested 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 writing by Parent to consummate the Debt Financing and (iiB) customary authorization historical audited and representation unaudited financial statements as filed with the SEC, financial data as may be reasonably requested in writing by Parent and audit reports, (iv) using commercially reasonable efforts to obtain accountants’ comfort letters, each legal opinions, surveys and title insurance as required reasonably requested in connection with the Debt Financing, authorizing the distribution of information to prospective lenders writing by Parent and containing a representation that the public side of such (v) executing and delivering any customary pledge and security documents, if anyother definitive financing documents or other certificates or documents requested in writing, 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 companyincluding, (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 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 extent the statements are true therein, a customary solvency certificate by the chief financial statements officer of the Company (provided that (A) none of the documents and certificates shall be executed and delivered except at 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 diligenceClosing, (eB) subject to and the effectiveness thereof shall be conditioned on upon, or become operative after, the occurrence of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding (C) none of the Debt Financing, (f) reasonably assisting in Buyer’s efforts to satisfy the conditions precedent set forth in Company or any definitive document relating to the Debt Financing to the extent satisfaction of such condition requires the cooperation of, its Subsidiaries 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 its Representatives shall be required to deliver pay any commitment or other fee or incur any liability in connection with the Debt Financing, in each case, solely Financing prior to the extent reasonable and customary for financings of such type, Effective Time and (jD) obtaining and providing documents to Buyer (including draft payoff letters) relating to no personal liability shall be imposed on the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this Agreement. The Company hereby consentsofficers, on behalf of itself and the Group Companiesdirectors, 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 employees or disparage the Company’s or any of its Affiliates’ reputation or goodwillagents involved).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Gerber Scientific Inc)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) 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 its reasonable best efforts to, and shall cause its Subsidiaries to use their reasonable best efforts to, and shall use its 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 all cooperation reasonably requested by Buyer that is reasonably Parent necessary in arrangingand customary for the arrangement of the Financing (provided, 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 Group CompaniesCompany or any of its Subsidiaries), including by (i) if requested by Parent, participating in a reasonable number 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 required by the Financing and requested by Parent, using reasonable efforts to facilitate the pledging of, and perfection of security interests in, collateral, effective no earlier than the Effective Time, (iii) furnishing Parent and the Lenders as promptly as reasonably practical, practicable following the delivery of a request therefor to the Company by Parent (awhich notice shall state with specificity the information requested) furnishing Buyer with the Required Financial Information such financial and other pertinent information regarding the Group Companies Company as may be reasonably requested by Buyer for is readily available to the completion of the Debt Financing, (b) participating in telephonic meetings Company at such time and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies is customarily required in connection with the Debt Financing execution of financings of a type similar to the extent Financing, including the financial statements of the Company and its consolidated Subsidiaries required by condition paragraph 4 in Exhibit C to the Debt Commitment Letter (such financial statements, the “Required Financial Information”), (iv) if requested by Parent, using reasonable and best efforts to assist Parent in connection with Parent’s preparation of customary pro forma financial statements as required by condition paragraph 5 in Exhibit C to the Debt Commitment Letter; provided, that (x) Parent shall be responsible for financings the preparation of such typepro 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, (cv) reasonably assisting in each case following Parent’s reasonable request, using reasonable best efforts to assist Parent and Merger Sub in the preparation of (iA) customary bank confidential information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda (including a version that does not include material non-public information) and other similar customary marketing documents and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as materials required in connection with financings similar to the Debt Financing, authorizing (B) materials for rating agency presentations and (C) definitive documentation for 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 companyFinancing, (dvi) 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 Company’s independent registered accounting firm Effective Time to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part execute Table of the Debt Financing, (ii) providing customary Contents resolutions or consents to the inclusion of their audit report in respect of any financial statements of the Company and its Subsidiaries that do not become effective until the Company Subsidiaries in any offering documents relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer Effective Time with respect to any auditor due diligence, (e) subject entering into the definitive documentation for the Financing and otherwise as necessary to and conditioned on the occurrence authorize consummation of the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing, and (fvii) 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 ofif requested by Parent, or is within the control ofprovide, the Group Companies, (g) delivering to Buyer at least three two (32) Business Days prior to the Closing Date, all such documentation and other 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, regulations including the USA 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 requested by Parent in writing at least nine (9) Business Days prior to the anticipated Closing Date. Notwithstanding anything to the contrary contained in this Section 5.13 or otherwise, neither the Company nor any of such type, its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 5.13 that would: (i) cooperating with internal and external counsel require the Company, its Subsidiaries or any Persons who are directors or officers of Buyer the Company or any of its Subsidiaries to pass resolutions or consents to approve or authorize the execution of the Financing that is effective prior to the Effective Time or execute or deliver any certificate, opinion, document, instrument or agreement or agree to any change or modification of any existing certificate, opinion, document, instrument or agreement that is effective prior to the Effective Time, (ii) cause any representation or warranty in connection with providing customary back-up certificates and factual information regarding this Agreement to be breached by the Company or any legal opinion that such counsel may be required of its Subsidiaries, (iii) require the Company or any of its Subsidiaries to deliver pay any commitment or other similar fee or incur any other expense, liability or obligation in connection with the Debt Financing, in each case, solely Financing prior to the extent reasonable Closing or have any obligation of the Company or any of its Subsidiaries under any certificate, document, instrument or agreement be effective until the Closing, (iv) cause any director, officer employee or stockholder of the Company or any of its Subsidiaries to incur any personal liability, (v) conflict with the organizational documents of the Company or any of its Subsidiaries or any Laws, (vi) reasonably be expected to result in a material violation or breach of, or a default (with or without notice, lapse of time, or both) under, any Contract to which the Company or any of its Subsidiaries is a party, (vii) provide access to or disclose information that the Company or any of its Subsidiaries determines would jeopardize any attorney-client privilege or other applicable privilege of the Company or any of its Subsidiaries, (viii) require the Company or any of its Subsidiaries to prepare any financial statements or information that (a) are not available to it and customary for financings prepared in the ordinary course of such type, its financial reporting practice and (jb) obtaining and providing documents would not otherwise be available to Buyer (including draft payoff letters) relating to the repayment it or capable of the Indebtedness and the release of related guarantees and Liens in accordance being prepared by it without undue burden or otherwise with the terms of this Agreement. The Company hereby consents, on behalf of itself and the Group Companies, to the use of its commercially reasonable efforts or (ix) require the logos Company or any of its Subsidiaries to enter into any instrument or agreement that is effective prior to the occurrence of the Group Companies Closing 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 Financing. Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with the Debt arrangement of the Financing and any action taken by them pursuant to this Section 5.13 and shall indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives from and against any and all losses suffered or incurred by them in connection with the arrangement of the 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 that such logos are used solely in a manner that is not intended to, nor is reasonably likely to, harm writing by the Company or disparage the Company’s or any of its Affiliates’ reputation or goodwillSubsidiaries specifically in connection with its obligations pursuant to this Section 5.13).
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine(a) Prior to the Closing, the Company and its Subsidiaries shall use their reasonable best efforts, and shall use their reasonable best efforts to cause the respective Representatives and Affiliates of the Company and its Subsidiaries to use their respective reasonable best efforts, to provide all customary cooperation, in its sole discretioneach case, to obtain as reasonably requested by Parent in connection with the arrangement of any bank debt financing to fund any portion of in connection with the Purchase Price transactions contemplated by this Agreement (such financing, the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained including, without limitation (xi) provide Seller upon reasonable prior notice and the Company with written notice that such Debt Financing has been obtained at times and (y) deliver (or cause locations to be deliveredmutually agreed upon, making the Company’s senior officers and certain relevant Representatives available to participate in a reasonable number of meetings (including customary one-on-one meetings), presentations, due diligence sessions and drafting sessions with potential lenders and rating agencies, (ii) to Seller and reasonably cooperating with the Company true, correct and complete copies marketing efforts of Parent for all arrangements pursuant to which any Financing Parties shall have committed to provide or any portion of the Debt Financing; provided that any fee letters may be redacted , including assisting Parent and Merger Sub with the preparation of customary materials for syndication documents and lender and investor presentations, including rating agency presentations, bank confidential information memoranda and similar documents required in a customary manner; provided further that, in no event shall connection with the receipt of such Debt Financing be a condition to Closing and Buyer confirms including identifying any portion of the information 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 Closingconstitutes material, subject to Section 8.11.2non-public information, the Company shall use (iii) using commercially reasonable best efforts to, and shall use reasonable best efforts to cause its independent accountants to provide assistance and cooperation to Parent, including participating in accounting due diligence sessions and providing consent to Parent to use their audit reports relating to the Company, (iv) to the extent applicable, obtaining customary authorization and representation letters with respect to the bank confidential information memoranda relating to the Debt Financing (provided, that such customary authorization and representation letters (or the bank confidential information memoranda in which such letters are included) shall include language that exculpates the Company Subsidiaries and its Subsidiaries and their respective Representatives todirectors and officers from any liability in connection with the unauthorized use by the recipients thereof of the information set forth in any such bank confidential information memoranda or similar memoranda or report distributed in connection therewith), in each case at Buyer’s sole expense, provide to Buyer such cooperation (v) if reasonably requested by Buyer that is reasonably necessary in arrangingParent, obtaining and syndicating the Debt Financingprovide and, if any (provided that such requested cooperation is consistent with applicable Laws and does not unreasonably interfere with applicable, execute documents relating to the operations repayment of the Group Companies)existing indebtedness of the Company and its Subsidiaries and the release of related Liens, including as promptly as reasonably practicalcustomary payoff letters and (to the extent required) evidence that notice of such repayment has been timely delivered to the holders of such indebtedness, (avi) furnishing Buyer with providing to the Required Financial Information Parent (to the extent available) customary financial and other pertinent information regarding the Group Companies as may be Company reasonably requested by Buyer for Parent or the completion Financing Sources and using commercially reasonable efforts to update such information from time to time as necessary to ensure such information does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the Debt Financingstatements contained therein not misleading; provided that such information shall not include any information that the Company and its Subsidiaries do not produce in any ordinary course of business, (bvii) participating in telephonic meetings and otherwise reasonably assisting Parent in connection with the preparation of appropriate (but not executing, unless effective only at or following the Effective Time) definitive financing documents, including credit agreements, intercreditor agreements, pledge and customary materials customary presentationssecurity documents and certificates or other documents (including, due diligence sessions obtaining surveys and title insurance and insurance certificates (including accounting due diligence sessionscustomary endorsements)) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such typereasonably requested by Parent, (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 (ii) customary authorization and representation letters, each as required case contemplated in connection with the Debt Financing, authorizing and otherwise reasonably facilitating the distribution pledging 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 companycollateral, (dviii) using reasonable best efforts cooperating with the Financing Sources’ due diligence investigation to cause the Company’s independent registered accounting firm to provide extent customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financingreasonable, (iiix) providing customary consents furnishing Parent with all documentation and other information with respect to the inclusion of their audit report in respect of any financial statements of the Company and the Company its Subsidiaries as shall have been reasonably requested 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 writing by Parent at least three (3) ten Business Days prior to the Closing all such documentation and information as Date that is reasonably requested required in writing by Buyer at least ten (10) Business Days prior to connection with the Closing to the extent required Debt Financing 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 sameAct, in each case, solely case no later than four Business Days prior to the extent reasonable Closing Date, and (x) providing customary for financings of such type, (i) cooperating information and assistance reasonably necessary to assist Parent and its counsel with internal and external counsel of Buyer obtaining the customary legal opinions required to be delivered in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver in connection with the 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 Affiliates’ reputation or goodwill.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) 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 8.11.2Acceptance Time, the Company shall, and shall use reasonable best efforts cause the Company Subsidiaries to, and shall use reasonable best efforts to cause the respective officers, employees, consultants and advisors, including legal and accounting advisors, of the Company and the Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, provide to Buyer Parent such customary 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of Parent in connection with obtaining the Debt Financing, including, (bi) participating making senior management of the Company and Company Subsidiaries, and using reasonable best efforts to make advisors of the Company and the Company Subsidiaries, available to participate in telephonic meetings a reasonable number of meetings, presentations and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) with proposed Lenders, and in a reasonable number of sessions with rating agencies agencies, (ii) assisting Parent with Parent’s preparation of pro forma financial information and pro forma financial statements and other materials for rating agency presentations, bank information memoranda, business projections and similar documents used in connection with the Debt Financing and providing customary estimates and other forward-looking financial information regarding the further performance of the business of the Company and the Company Subsidiaries to the extent reasonable and customary for financings of such typereasonably requested by the Lenders, (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 (ii) 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, (diii) using reasonable best efforts to cause its independent accountants to provide assistance and cooperation to Parent, including participating in drafting sessions and accounting due diligence sessions, assisting in the preparation of any pro forma financial statements to be included in the documents referred to in clause (ii) above and using reasonable best efforts to cause its independent accountants to provide consent to Parent to use their audit reports relating to the Company, (iv) subject to the occurrence of the Acceptance Time, taking all corporate actions necessary to permit consummation of the Debt Financing and executing and delivering Definitive Agreements, including pledge and security documents, certificates, and other documents, to the extent reasonably requested by Parent, and otherwise reasonably facilitating the pledging of collateral, (v) using reasonable best efforts to obtain customary payoff letters, lien terminations and instruments of discharge, relating to any Indebtedness of the Company (it being understood and agreed that the Company’s independent registered accounting firm obligations to provide customary assistance, including (i) providing customary comfort payoff letters (including “negative assurance comfort” and “change period comfort”) in 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 the Credit Agreement described in Section 5.16(c) below are as set forth in Section 5.16(c) below) and the Company Subsidiaries, (vi) providing reasonable access by Parent and any financial statements Lenders, and their respective officers, employees, consultants and advisors (including legal, valuation, and accounting advisors) to the books and records, properties, officers, directors, agents and representatives of the Company and the Company Subsidiaries in any offering documents Subsidiaries, (vii) assisting with due diligence activities relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligenceCompany’s financial information, (eviii) subject furnishing to Parent and conditioned on its Lenders all pertinent and customary financial and other information regarding the occurrence of Company and the Closing, the taking of customary corporate actions Company Subsidiaries reasonably necessary requested by Parent as promptly as practicable following such request to permit the consummation of and funding of consummate the Debt Financing, including (fx) reasonably assisting in Buyer’s efforts all historical financial statements and historical financial data by the Company regarding the Company and the Company Subsidiaries necessary to timely satisfy the conditions precedent set forth in any definitive document relating the Commitment Letter and the Fee Letter, or as is otherwise necessary to demonstrate such satisfaction and (y) customary authorization and representation letters to the extent contemplated by the Commitment Letter (all such information, the “Required Financial Information”), (ix) taking all actions reasonably requested to (A) permit the prospective Lenders involved in the Debt Financing to evaluate the extent satisfaction Company’s and the Company Subsidiaries’ assets, cash management and accounting systems, policies and procedures relating thereto, including inventory appraisals and field audits, for the purpose of such condition requires establishing collateral arrangements and (B) establish bank and other accounts and blocked account contracts and lock box arrangements in connection with the cooperation of, or is within foregoing after the control of, the Group Companies, Acceptance Time and (gx) delivering to Buyer providing at least three (3) four Business Days prior to the Closing Acceptance Time all such documentation and other information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior to about the Closing to Company and the extent Company Subsidiaries required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, regulations including the PATRIOT USA 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 requested at least eight days prior to the anticipated Acceptance Time; provided, that nothing herein shall require any 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 deliver in connection with the Debt Financing, in each case, solely cooperation contemplated by this Section 5.16 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 it would interfere unreasonably with the repayment business or operations of the Indebtedness and Company or the release of related guarantees and Liens in accordance with the terms of this AgreementCompany Subsidiaries. The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of its and the Company Subsidiaries’ logos of the Group Companies in connection with the Debt Financing; provided provided, that such logos are used solely in a manner that is not intended to, nor is to or reasonably likely to, to harm or disparage the Company’s Company or any of its Affiliates’ the Company Subsidiaries or the reputation or goodwillgoodwill of the Company or any of the Company Subsidiaries or any of their logos and on such other customary terms and conditions as the Company shall reasonably impose.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xi) 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 ClosingClosing or termination of this Agreement in accordance with Article VIII, subject to Section 8.11.2actions taken in response to COVID-19 Measures, the Company shall use commercially reasonable best efforts to, and shall use reasonable best efforts to provide, shall cause each of the Company Subsidiaries and its and their respective employees and officers to use commercially reasonable efforts to provide, and shall use commercially reasonable efforts to cause the directors and other Representatives toof the Company and the Representatives of each of the Company Subsidiaries to provide, in each case at BuyerParent’s sole expense, provide all customary cooperation to Buyer such cooperation the extent reasonably requested by Buyer that is reasonably necessary Parent in arrangingconnection with the arrangement of any debt financing in connection with the transactions contemplated hereby, obtaining including using commercially reasonable efforts to: (A) cause the senior management of the Company and syndicating the Debt FinancingCompany Subsidiaries to participate at reasonable times in a reasonable number of meetings, if any drafting sessions, presentations and due diligence sessions with prospective financing sources, investors and ratings agencies, in each case, upon reasonable advance notice (provided that such requested cooperation is consistent with applicable Laws participations may be over conference call or other electronic means and does need not unreasonably interfere with the operations of the Group Companiesbe in person), including as promptly as (B) reasonably practical, (a) furnishing Buyer cooperate with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies Parent’s marketing efforts in connection with the Debt Financing to the extent reasonable any debt financing, including executing and delivering customary for financings of such type, (c) reasonably authorization letters and assisting Parent in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering or private placement memoranda presentations and other similar customary marketing documents materials and due diligence efforts for the Debt Financing and (ii) customary authorization and representation letters, each as required rating agency materials to be used in connection with the Debt Financing, authorizing the distribution arrangement of information to prospective lenders and containing any debt financing (including a representation that the public side version of such documents, if any, do marketing materials that does not include contain any information about any Group Company or any securities of any Group Company that would constitute material non-public information within with respect to the meaning of Company and the United States federal and state securities laws if any Group Company were a public reporting companySubsidiaries), (dC) 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 connection furnish Parent 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 historical financial statements of the Company and the Company Subsidiaries in any offering documents relating required as a condition to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to funding of any auditor due diligencedebt financing, (eD) subject provide Parent with information reasonably necessary to complete customary perfection certificates and conditioned on customary schedules to loan documents as may be reasonably requested by Parent, (E) reasonably facilitate the occurrence pledging of collateral as of (but not prior to) the Closing, the taking of customary corporate actions reasonably necessary to permit the consummation of and funding of the Debt Financing(F) provide, (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 four (34) Business Days prior to the Closing Date, all such documentation and other information about the Company and the Company Subsidiaries 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, regulations including the USA PATRIOT Act and Act, to the requirements of 31 C.F.R. §1010.230extent requested by Parent in writing at least nine (9) Business Days prior to the Closing Date, (hG) facilitating execute and assisting in deliver, on the preparation and delivery of Closing Date, any customary credit agreements, indenturespledge and security documents, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates guarantees or other definitive financing documents relating to or other requested certificates, including a customary solvency certificate duly executed by 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 chief financial officer of the sameSurviving Corporation, in each case, case solely to the extent reasonable the applicable officers executing and customary for financings of delivering any such typedocuments and certificates will continue in their respective positions from and after the Closing Date, (iH) cooperating with internal reasonably facilitate the pledging of collateral, including any possessory collateral, (I) take, on the Closing Date, corporate actions to permit the consummation of the debt financing and external counsel of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may to permit the proceeds thereof to be required to deliver in connection with the Debt Financing, in each case, solely made available to the extent reasonable Surviving Corporation at the Effective Time, it being understood that no such corporate action will take effect prior to the Closing and customary for financings of such typethat the Company Board will not approve any debt financing prior to the Closing Date, and (jJ) obtaining cooperate with, and providing documents take all actions reasonably requested by, Parent in order to Buyer (including draft facilitate the termination and payoff letters) relating to the repayment of the Indebtedness and commitments under the release Existing Credit Facility at Closing upon or simultaneously with the funding of related guarantees and Liens any debt financing, 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 Affiliates’ reputation or goodwillPayoff Letter.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the 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 agrees to provide any portion of the Debt Financing; provided that any fee letters may be redacted in a customary manner; provided further thatsuch assistance, 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 cause 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 toto provide such assistance, 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to as is reasonably requested by Parent. Such assistance shall include, but not be limited to, the extent reasonable and customary for financings of such type, (c) reasonably assisting in the preparation of following: (i) customary bank information memorandaparticipating in a reasonable number of meetings, lender and investor presentationsdrafting sessions, offering documents, offering or private placement memoranda and other similar marketing documents rating agency presentations and due diligence efforts for the Debt Financing and sessions, (ii) customary authorization furnishing Parent and representation letters, each as its lenders with all financial and other information reasonably required by Parent’s lenders in connection with the Debt Financing, authorizing including, the distribution Required Financial Information, (iii) assisting Parent and its lenders in the preparation of (A) a customary bank information to prospective lenders memorandum, confidential information memorandum and containing a representation that the public side of such similar documents, if anyincluding customary authorization or reliance letters, 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 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 for the Debt Financing and (iiiB) reasonable assistance and cooperation to Buyer with respect to any auditor due diligencematerials for rating agency presentations, (eiv) 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 cooperating with Parent 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 Company and reasonably requested by Parent, (v) assisting in the preparation of, and executing and delivering, definitive financing documents, including, customary closing certificates, as may be reasonably required in connection with the Group CompaniesDebt Financing and other customary certificates and collateral security and guarantee documentation, as may be reasonably requested by Parent, (gvi) delivering to Buyer the Parent at least three (3) Business Days prior to the Closing Date all such documentation and other 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, regulations (including the PATRIOT Act and U.S.A. Patriot Act), that has been reasonably requested in writing by the requirements of 31 C.F.R. §1010.230Financing Sources at least eight (8) Business Days prior to the Closing Date, (hvii) facilitating using commercially reasonable efforts to furnish Parent and assisting in its lenders as promptly as reasonably practicable with financial, business and other information regarding the preparation Company and delivery its Subsidiaries as may be reasonably requested by the Parent, (viii) using commercially reasonable efforts to ensure that the Financing Sources benefit materially from existing lending and investment banking relationships of any credit agreements, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating the Company and (x) cooperating with Parent to the Debt Financing relating extent within the control of the Company, and taking all corporate actions, subject to the Group Companiesoccurrence of the Closing, and their respective businesses reasonably requested by Parent to be included in permit the definitive documents relating to consummation of the Debt Financing; provided, and assist with that (w) 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 Company shall not be required to deliver pay any fees (other than reasonable out of pocket expenses reimbursed by Parent hereunder) or incur any other liability or give any indemnity in connection with the Debt Financing, (x) no obligation of the Company under any agreement, certificate, document or instrument required to be delivered under this Section 5.17(a) shall be effective until the Closing other than in each caserespect of customary authorization or reliance letters, solely (y) no Representative of the Company shall be required to take any action that could reasonably be expected to result in or cause any personal liability on the extent reasonable and customary for financings part of such typeany Representative, and (jz) obtaining nothing in this Agreement will require the Company board of directors to approve any financing, including the Debt Financing, or any definitive documentation related thereto prior to Closing. Parent shall reimburse the Company for all reasonable and documented out of pocket costs and expenses incurred by the Company in connection with the Company’s cooperation and compliance with this Section 5.17(a). Parent will indemnify and hold harmless the Company and its Subsidiaries from and against any and all losses, damages, claims, costs or expenses actually suffered or incurred by them in connection with the arrangement of the Debt Financing and any information used in connection therewith. Notwithstanding anything in this Section 5.17(a) to the contrary, the Company may refuse to provide any access, or to disclose any information, if the Company is advised in writing by its outside legal counsel that providing documents to Buyer such access or disclosing such information would (A) violate applicable Law (including draft payoff letters) relating antitrust and privacy laws); provided, that, the Company shall provide such access or disclose such information to the repayment greatest extent possible without violating applicable Law or (B) cause the loss of any attorney-client privilege; provided, that, if any information is withheld pursuant to the Indebtedness foregoing clause (B), the Company shall inform the Parent as to the general nature of what is being withheld and the release parties shall use commercially reasonable efforts, such as entry into a customary joint defense agreement, to enable the Company to provide such information without causing the loss of related guarantees and Liens in accordance with the terms of this Agreementany attorney-client privilege. The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the its and its Subsidiaries’ 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, to nor is reasonably likely to, to harm or disparage the Company’s Company or any of its Affiliates’ Subsidiaries or the reputation or goodwillgoodwill of the Company or any of its Subsidiaries and its or their marks.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine(a) Prior to and until the Closing, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer Company shall, promptly after such Debt Financing is obtained (x) provide Seller and shall cause its Subsidiaries to, 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 each 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 Subsidiaries 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of the Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) 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 (ii) 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 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 its Subsidiaries to, (1) provide to Parent and Merger Sub, as applicable, (x) the Company Subsidiaries in any offering documents relating to the Debt Financing Required Information and (iiiy) 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 Date, all such documentation and other 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. applicable regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT USA 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 Companies2001, and their respective businesses to be included in the definitive documents relating to the Debt Financingbeneficial ownership regulations, and assist with the execution and delivery of the same, but in each case, solely as relating to the Company and its Subsidiaries to the extent reasonably requested by the Parent and/or the Debt Financing Sources at least ten Business Days prior to the Closing Date and (2) use reasonable best efforts to provide to Parent 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 Merger Sub all cooperation reasonably requested by Parent that such counsel may be is necessary or reasonably required to deliver in connection with the Debt Financing, including the following: (i) using reasonable best efforts to cause the Company’s and its Subsidiaries’ senior officers and other representatives to participate in no more than two meetings (which shall be virtual) or conference call (which shall be virtual) with prospective lenders, to the extent reasonably requested in connection with the Debt Financing and only to the extent customarily needed for financings of the type contemplated by the Debt Commitment Letter, in each case at reasonable times and on reasonable advance notice, (ii) using reasonable best efforts to assist with the preparation of appropriate and customary materials for rating agency presentations, syndication documents (including any customary bank information memoranda), (iii) using reasonable best efforts to assist with the preparation of schedules to any pledge, security and other collateral documents, loan agreement or other definitive financing documentation, or any certificates, in each case, as may be reasonably requested by Parent and customary for transactions of the type contemplated by the Debt Financing Commitment, , and in each case solely to the extent such materials relate to information concerning the Company and that is necessary to complete such schedules (iv) using reasonable and customary for financings best efforts to facilitate the pledging of such typecollateral, and provided that no pledge shall be effective or public filing be made until the Effective Time, (jv) 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 Section 6.13, using reasonable best efforts to facilitate and deliver the terms of this Agreement. The Company hereby consentsPayoff Letter, on behalf of itself (vi) using reasonable best efforts to execute customary authorization and the Group Companies, to the use of the logos of the Group Companies representation letters in connection with the Debt Financing, provided that such authorization and representation letters shall related only to the historical information provided by the Company and its Subsidiaries, (vii) using reasonable best efforts to cooperate with the Debt Financing Sources’ due diligence requests and review, to the extent reasonably requested in connection with the Debt Financing, and (viii) using reasonable best efforts to take such actions as are reasonably requested by the Parent or the Debt Financing Sources to facilitate the satisfaction of all conditions precedent to obtaining the Debt Financing to the extent within the control of the Company (including delivery of the stock and other equity certificates of the Company and its Subsidiaries to the Parent); provided that such logos are used solely (I) until the Effective Time occurs, neither the Company nor any of its Subsidiaries shall (A) be required to (x) pay any fees, expenses or other amounts in a manner connection with the Debt Financing or (y) execute or enter into, or cause any Affiliates, or any of their respective directors, officers, employees or agents, to execute or enter into, any certificate, instrument, agreement or other document in connection with the Debt Financing which will be effective prior to the Effective Time (provided that is not intended to, nor is reasonably likely to, harm or disparage no officer of the Company’s Company or any of its Affiliates’ reputation Subsidiaries who is not remaining in such position following the Closing Date shall be obligated to execute any certificate, instrument, agreement or goodwillother document), (B) have any liability or obligation under any loan agreement or any related document or any other agreement or document related to the Debt Financing or (C) be required to incur any liability in connection with the Debt Financing and (II) nothing herein shall require cooperation that would require providing access to or disclosing information that the Company reasonably determines would jeopardize any attorney-client or other legal privilege. Notwithstanding anything to the contrary in this Section 6.16, but subject to the terms set forth on Section 6.16 of the Company Disclosure Letter, nothing will require the Company or its Subsidiaries to provide (or be deemed to require the Company to prepare) any (1) pro forma financial statements, projections or other prospective information; (2) description of all or any portion of the Debt Financing; (3) risk factors relating to all or any component of the Debt Financing, including any such description to be included in liquidity and capital resources disclosure; (4) “segment” financial information and separate subsidiary financial statements, (5) any financial statements or other information required by Rules 3-09, 3-10, 3-16, 13-01 or 13-02 of Regulation S-X, Regulation S-K Item 302 or for any period prior to January 1, 2019, (6) information regarding officers or directors prior to consummation of the Merger (except biographical information if any of such persons will remain officers or directors after consummation of the Merger, if any), executive compensation and related party disclosure or any Compensation Discussion and Analysis or information required by Item 302 (to the extent not so provided in SEC filings) or 402 of Regulation S-K under the Securities Act and any other information that would be required by Part III of Form 10-K (except to the extent previously filed with the SEC), (7) information regarding affiliate transactions that may exist following consummation of the Merger, (8) information regarding any post-Closing pro forma cost savings, synergies, capitalization, ownership or other post-Closing pro forma adjustments (excluding information that is historical financial information of the Company and is derivable without undue effort or expense by the Company from the books and records of the Company or any of its subsidiaries) or (9) information necessary for the preparation of any projected or forward-looking financial statements or information that is not derivable without undue effort or expense by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Resideo Technologies, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) 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 commercially reasonable best efforts to, and shall use commercially reasonable best efforts to cause appropriate senior management of the Company Subsidiaries Acquired Companies to, provide Buyer such reasonable cooperation as is necessary, customary or advisable and its and their respective Representatives toreasonably requested by Buyer to assist Buyer, in each case at Buyer’s sole expense, provide in connection with the obtaining of and consummation of any Debt Financing, including using its commercially reasonable efforts to: (i) upon reasonable notice, participate in a reasonable number of lender meetings, due diligence presentations and sessions with rating agencies, in each case solely with respect to Buyer such cooperation information regarding the Acquired Companies, in each case as reasonably requested by Buyer and reasonably required in connection with the obtaining of Debt Financing at Closing and in each case on a telephonic or other remote basis, (ii) assist Buyer and the Debt Financing Sources in benefitting from the existing lending relationships of the Acquired Companies, (iii) furnish Buyer with (1) the Financial Statements and (2) such other pertinent and customary financial and other information and disclosures (including financial information and data derived from the historical books and records of the Acquired Companies) regarding the Acquired Companies that is reasonably (x) required to permit Buyer to prepare relevant pro forma financial statements or (y) customary and necessary in arranging, obtaining and syndicating to permit the consummation of debt financings similar to the Debt Financing, if any (provided that such requested cooperation is consistent including all information relating to the Acquired Companies customary for use in information documents with applicable Laws and does not unreasonably interfere with respect to the operations placement, arrangement and/or syndication of loans of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested type contemplated by Buyer for the completion of the such Debt Financing, (b) participating in telephonic meetings and otherwise reasonably assisting with to the preparation of appropriate and customary materials customary presentationsextent applicable, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing preparation by the Buyer of materials for rating agency presentations, marketing materials, bank information memoranda (including with respect to the extent reasonable presence of or absence of material non-public information relating to the Acquired Companies and customary for financings the accuracy of such typethe information relating to the Acquired Companies contained therein), (c) reasonably assisting in the preparation of (i) customary bank confidential information memorandamemorandum, 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 (ii) customary authorization and representation letters, each as reasonably required in connection with the Debt Financing, authorizing in each case as reasonably requested by 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 companyBuyer, (div) 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 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 five (35) Business Days prior to the Closing Date, furnish Buyer and any prospective Debt Financing Sources with all such documentation and other 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 any Governmental Entity with respect to such financing under applicable law (including “know your customer” and anti-money laundering rules and regulations), including to the PATRIOT Act and extent requested in writing at least ten (10) Business Days prior to the requirements of 31 C.F.R. §1010.230Closing Date, (hv) facilitating and assisting provide assistance 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 connection with the execution and delivery of the samecustomary credit agreements (or amendments thereto), in each casepledge and security documents, solely guarantees, indentures, contribution agreements, management and services agreements, purchase agreements, solvency certificates, and other customary definitive documentation relating to the extent reasonable relevant Debt Financing provided that the foregoing documentation Execution Version and customary for financings the pledge of such typeany collateral shall be subject to the occurrence of the Closing and become effective no earlier than the Closing, (ivi) cooperating request its independent accountants to provide necessary “comfort letters” on customary terms and consistent with internal and external counsel of Buyer customary practice in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required a Debt Financing, (vii) cooperate reasonably with the due diligence efforts of the Debt Financing Sources related to deliver the Acquired Companies in connection with the Debt Financing, in each case, solely and (viii) 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 same become reasonably necessary in connection with a Debt Financing, obtaining waivers, consents estoppels and approvals from other parties to material leases, encumbrances and contracts relating to each Acquired Company (including arranging discussions among each Acquired Company and the Debt Financing; provided that Financing Sources with other parties to such logos are used solely in a manner that is not intended tomaterial leases, nor is reasonably likely to, harm or disparage encumbrances and contracts as of the Company’s or any of its Affiliates’ reputation or goodwillClosing).
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) 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 8.11.2the Company, the each Company shall use reasonable best efforts to, Subsidiary and shall use reasonable best efforts to cause the each Company Subsidiaries and its and their respective Representatives to, in each case at Buyer’s sole expense, Representative will provide to Buyer such all cooperation reasonably requested by Buyer that is reasonably necessary Ultimate Parent, Parent and Merger Sub 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 connection with the operations of with the Group Companiescapital markets and bank financings to be undertaken by the Ultimate Parent in connection with the acquisition contemplated by the Merger (each a “Financing” and collectively, the “Financings”), including as promptly as reasonably practical, and to use their respective commercially reasonable efforts (a) furnishing Buyer to cause appropriate officers and employees of the Company and each Company Subsidiary (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 Required Financial Information preparation of disclosure documents, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations, projections and similar documents in connection therewith (including permitting the use of the Company’s and any Company Subsidiaries’ logo therein), (iii) to provide customary authorization letters to the Financing sources authorizing the distribution of information provided by the Company and the Company Subsidiaries to prospective Financing sources, (iv) to furnish Ultimate Parent, Parent and Merger Sub and its Financing sources with financial statements and financial and other pertinent information regarding the Group Companies Company and each Company Subsidiary as may be reasonably requested by Buyer for Ultimate Parent, Parent and Merger Sub to consummate the completion offerings of securities contemplated by the Financings at the time that such offerings will be made (including, without limitation, such information necessary to prepare a pro forma consolidated balance sheet and related pro forma consolidated statement of operations), (v) to take all corporate actions necessary and customary to permit the consummation of the Debt FinancingFinancings and to execute and deliver any definitive Financing documentation, security documents, hedging arrangements, customary certificates, legal opinions (bwhich may be reasoned, if counsel reasonably believes it cannot give the opinion otherwise) participating in telephonic meetings or other documents as may be reasonably requested by Ultimate Parent, Parent and otherwise reasonably assisting with the preparation of appropriate and customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies Merger Sub in connection with the Debt Financing to the extent reasonable and customary for financings of such typeFinancings, (cvi) reasonably assisting in to obtain all waivers, consents and approvals from other parties to Contracts and Liens to which 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 (ii) 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 its Subsidiaries is a party or by which any Group Company that would constitute material non-public information within of them or their assets or properties are bound or subject, and (vii) to take all other actions necessary to permit the meaning consummation of the United States federal Financings and state securities laws if any Group Company were a public reporting company, (db) 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 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 certified public accountants of the Company and the Company Subsidiaries in any offering documents relating to provide assistance to Ultimate Parent, Parent and Merger Sub, including providing 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 consents 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 deliver in 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, securities laws to the use of their audit reports relating to the logos Company and the Company Subsidiaries in a public offering document, participating in customary due diligence sessions that may be conducted by the underwriters of any securities offering and to provide any necessary “comfort letters” and to prepare and deliver other customary documents and instruments. Notwithstanding the foregoing, nothing in this Section 5.18 shall require the cooperation or participation of the Group Companies in connection Company, the Company Subsidiaries or the Company Representatives to the extent it would (A) unreasonably interfere 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 business or disparage operations of the Company or the Company Subsidiaries or otherwise unreasonably interfere with the prompt and timely discharge by the Company’s or any Company Subsidiary’s employees of their normal duties, (B) cause any representation or warranty in this Agreement to be breached, any condition to Closing set forth in Article VI to fail to be satisfied or otherwise cause any breach of this Agreement, (C) require the Company or any of the Company Subsidiaries to pay any out-of-pocket fees or expenses prior to the Closing that are not promptly reimbursed by the Parent, (D) require the Company or any Company Subsidiary to pledge any assets as collateral, or pay any commitment or other similar fee or incur any other liability in connection with the Financings prior to the Closing, or otherwise involve any binding commitment by the Company or any of the Company Subsidiaries unless such commitment is conditioned on the Closing and terminates automatically and without liability to the Company or any of the Company Subsidiaries upon the termination of this Agreement or (E) cause any director, officer or employee of the Company or any of its Affiliates’ reputation or goodwillSubsidiaries to incur any personal liability. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 5.18 shall require the Company Board to take any action to approve any Financing.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund (a) In connection with any portion contemplated obtainment of the Purchase Price (the “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 prior to the Closing, at Buyers’ expense to the extent subject to the expense reimbursement provisions in Section 8.11.27.26(b), the Company Seller shall use reasonable best efforts to, to provide (and shall use reasonable best efforts to cause the Company Subsidiaries and its and their respective Representatives to, in each case to provide) to Buyers (at Buyer’s Buyers’ 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for the completion of Buyers to assist them in arranging and obtaining the Debt Financing, subject to Section 7.26(b). Such cooperation shall include, but not be limited to: (ba) participating in telephonic meetings (x) furnishing on a confidential basis to Buyers and otherwise reasonably assisting their Representatives and the Financing Sources (A) the Required Information and (B) within a reasonable time period consistent with the preparation of appropriate Seller’s past practice, such other historical financial information and customary materials customary presentationsother pertinent historical information reasonably available to the Seller regarding the Business, due diligence sessions (including accounting due diligence sessions) the Purchased Assets and sessions with rating agencies the Assumed Obligations as may be reasonably requested by Buyers in connection with the Debt Financing and (y) reasonably cooperate to update any Required Information in order to cause such Required Information to be Compliant; provided that such assistance shall be limited solely with respect to information and data derived from the extent Seller’s historical books and records; (b) 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 for financings of such typesyndication activities, (c) reasonably assisting cooperating in satisfying the conditions precedent set forth in the preparation Debt Financing Commitment Letters to the extent satisfaction of any such condition is within the control of Seller, (id) customary bank providing information memorandaregarding the Business, lender the Purchased Assets and investor the Assumed Obligations as may be reasonably requested by Buyers to assist Buyers in preparing materials for rating agency presentations, offering documents, offering or private placement memoranda memoranda, bank information memoranda, prospectuses (registered or otherwise) and other similar marketing documents reasonably and due diligence efforts for customarily used to complete the Debt Financing Financing, (e) using commercially reasonable efforts to assist Buyers in the preparation of customary pro forma financial statements (it being agreed that the preparation of any such pro forma financial statements will be the responsibility of Buyers and not the Seller); provided, that neither the Seller or its Representatives shall be required to provide any such assistance with respect to financial information or statements relating to (iiA) customary authorization the determination of the proposed aggregate amount of the Debt Financing, the interest rates thereunder or the fees and representation lettersexpenses relating thereto or (B) the determination of any post-Closing or pro forma cost savings, each as required synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing; 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 reasonably available to the Seller and (y) neither Seller nor its Representatives shall be required to certify or attest to any such pro forma financial statements or other forecasted information, (f) to the extent required by the Financing Sources, providing customary authorization letters authorizing the distribution of information to prospective lenders Financing Sources regarding the Business, subject to customary terms 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 companyconditions, (dg) using reasonable best efforts to cause the Companyreasonably cooperating with Xxxxx’s independent registered accounting firm to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) legal counsel in 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 opinions that such legal counsel may be required to deliver in connection with the Debt Financing, (h) assisting Buyer in obtaining surveys and title insurance, provided, that Seller’s cooperation with respect to title insurance shall be limited solely to providing (I) owner’s affidavits substantially in the form of Exhibit F attached hereto with respect to any interests in Owned Real Property held by the Seller, (II) evidence of corporate authority and organizational documents customarily delivered to title companies in connection with the issuance of customary owner’s title policies, and (III) customary transfer tax declaration forms and similar instruments customarily delivered in connection with the transfer of an interest in real property in the state where such real property is located, (i) assisting in the preparation of any collateral schedules pertaining to the Purchased Assets in connection with the granting of security interests by the Buyers on the Closing Date and obtaining releases of existing liens on the Purchased Assets (other than Permitted Encumbrances); 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, solely subject to the extent reasonable and customary for financings occurrence of such typethe Closing, and (ji) assisting Buyer in obtaining and providing documents to Buyer from the Sellers’ auditors comfort letters (including draft payoff lettersas to negative assurances) 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 Financing and (j) providing, at least five Business Days prior to the Closing Date, all documentation required with respect to Labo by applicable “know your customer” and anti-money laundering Laws, including the USA PATRIOT Act, to the extent requested in a manner that is not intended to, nor is reasonably likely to, harm or disparage writing at least ten Business Days prior to the Company’s or any of its Affiliates’ reputation or goodwillClosing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (Centerpoint Energy Resources Corp)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) 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 ClosingClosing Date, subject to Section 8.11.2, the Company Forest shall use its reasonable best efforts toto provide to the Sabine Parties, and shall cause each of its Subsidiaries to use its reasonable best efforts to provide, and shall use its reasonable best efforts to cause the Company Subsidiaries its Representatives, including legal, accounting and its and their respective Representatives toreserve engineers, to provide, in each case at Buyer’s the Sabine Parties’ sole expense, provide to Buyer such all cooperation reasonably requested by Buyer Sabine Holdings that is reasonably necessary customary 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 connection with the operations of the Group CompaniesRefinancing (including any Debt Offer), including using reasonable best efforts to (i) (A) furnish the Sabine Parties and their Representatives and Financing Sources, as promptly as reasonably practicalpracticable following Sabine Holdings’ request, with such pertinent and customary information (aother than financial information, which is covered by clause (ii) furnishing Buyer with the Required Financial Information and other pertinent information below), regarding the Group Companies Forest Entities and their assets as may be reasonably requested in writing by Buyer for Sabine Holdings to consummate any customary offerings of debt securities, contemplated by the completion Sabine Parties or any of the Debt Financingits Affiliates, (b) participating including customary information to be used in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate any offering memorandum, and (B) furnish the Sabine Parties, their Representatives and the Financing Sources, as promptly as reasonably practicable following Sabine Holdings’ request, with information (other than financial information, which is covered by clause (ii) below) regarding the Forest Entities and their assets (including information to be used in the preparation of one or more information packages regarding the business, operations, financial projections and prospects of the Forest Entities and its assets) pertinent and customary materials for the arrangement of loans contemplated by the Sabine Parties or any of their Subsidiaries (the “Bank Financing”), including reserve reports and lease operating statements, to the extent reasonably requested in writing by Sabine Holdings to assist in preparation of customary offering or information documents or rating agency or lender presentations relating to such arrangement of loans, (ii) furnish all financial statements (including audited and interim financial statements), pro forma financial statements and other financial data and financial information of the Forest Entities that is reasonable and customary in connection with the Refinancing and assisting, to the extent necessary, reasonable and customary in connection with the Refinancing, in the preparation of pro forma financial statements (the information, financial statements, pro forma financial statements, business and other financial data, reserve reports, lease operating statements and financial information referred to in clauses (i) and (ii) above shall be referred to herein as the “Requested Information”) (it being understood that Requested Information shall be of the type and in the form required by Regulation S-X and Regulation S-K under the Securities Act, unless otherwise specified by the Sabine Parties (but subject to exceptions customary for Rule 144A offerings), (iii) participate in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers, bookrunners or agents for, and prospective lenders and purchasers of, the Refinancing and senior management and Representatives, with appropriate seniority and expertise, of Forest), presentations, road shows, due diligence sessions, drafting sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing to the extent reasonable and customary for financings of such typeRefinancing, (civ) reasonably assisting in assist with the preparation of (i) customary bank information memoranda, lender and investor materials for rating agency presentations, offering documents, offering or private placement memoranda bank information memoranda, and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) 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 companyRefinancing, (dv) using reasonable best efforts to cause the Company’s independent registered accounting firm its accountants to provide customary assistance, including (i) providing customary “comfort letters (including “negative assurance comfortletters” and “change period comfort”) in connection with any capital markets transaction comprising a part of the Debt Financingreasonably requested by Sabine Holdings, (iivi) providing customary consents seek to obtain the consent of accountants and any reserve engineers to the inclusion use of their audit report in respect of any financial statements of the Company and the Company Subsidiaries reports in any offering documents material relating to the Debt Financing and (iii) reasonable assistance and cooperation to Buyer with respect to any auditor due diligenceRefinancing, (evii) take all corporate actions, subject to and conditioned on the occurrence of the ClosingEffective Time, the taking of customary corporate actions reasonably necessary requested by Sabine Holdings to permit the consummation of the Refinancing and funding to permit the proceeds thereof to be made available to the Sabine Parties or any of their Affiliates immediately after the Effective Time, (viii) assist in the amendment or novation of any of Forest’s or its Subsidiaries’ Derivative Transactions, in each case, on terms that are reasonably requested by the Sabine Parties in connection with the Refinancing; provided that no obligation of any Forest Entity under any such amendments or novations shall be effective until the Effective Time, (ix) facilitate the pledging of collateral in support of the Debt FinancingRefinancing and provide customary title information and title opinions, in each case, at the sole cost and expense of the Sabine Parties (it being understood that Forest shall provide title information and title opinions in its possession through reasonable means which minimize the costs and expenses), (fx) 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 provide all such documentation and other information about Forest Entities as is reasonably requested in writing by Buyer at least ten (10) Business Days prior the Financing Sources relating 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 USA PATRIOT Act and the requirements of 31 C.F.R. §1010.230anti-bribery and anti-corruption rules and regulations, (hxi) facilitating and assisting in the preparation and delivery of connection with any credit agreementsBank Financing or any bridge or loan financing, indentures, notes, underwriting agreements, purchase agreements, security documentation, guarantees, schedules, perfection certificates or other definitive documents relating provide customary authorization letters to the Debt Financing relating Sources authorizing the distribution of information to prospective lenders and containing a customary representation to the Group Companies, Financing Sources that such information does not contain a material misstatement or omission and their respective businesses to be included in the definitive documents relating containing a representation to the Debt FinancingFinancing Sources that the public side versions of such documents, and assist if any, do not include material non-public information about any Forest Entity or their securities, (xii) cooperate with the execution and delivery Financing Sources in their efforts to benefit from the existing lending relationships of the sameForest Entities, in each case(xiii) cooperate reasonably with the Financing Sources’ due diligence, solely to the extent customary and reasonable and to the extent not unreasonably interfering with the business of Forest and (xiv) seek to obtain customary payoff letters, lien terminations and releases and instruments of discharge to be delivered at Closing providing for financings the payoff, discharge and termination on the Closing Date of such typeall indebtedness and release of liens contemplated by the Refinancing to be paid off, discharged and terminated on the Closing Date, including the Existing Forest Credit Agreement; provided, however, that, no obligation of any Forest Entity under any agreement, certificate, document or instrument (iother than the authorization letters referred to above) cooperating with internal and external counsel shall be effective until the Effective Time and, no Forest Entity or any of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may their Representatives shall be required to deliver pay any commitment or other fee (except to the extent such Forest Entity or Representative is promptly reimbursed) or incur any other liability in connection with the Debt Financing, in each case, solely Refinancing prior to the extent reasonable and customary for financings Effective Time; provided, however, further, that no Forest entity or any of such type, and (j) obtaining and providing documents their respective directors or officers or other personnel shall be required by this Section 6.16 to Buyer (including draft payoff letters) relating to the repayment of the Indebtedness and the release of related guarantees and Liens in accordance take any action or provide any assistance that unreasonably interferes with the terms ongoing operations of this AgreementForest or any of their Subsidiaries. The Company Forest hereby consents, on behalf of itself and the Group Companies, consents to the use of the its and its Subsidiaries’ logos of the Group Companies in connection with the Debt FinancingRefinancing; provided that such logos are used solely in a manner that is not intended to, nor is to or reasonably likely to, to harm or disparage any Forest Entity or the Company’s reputation or goodwill of any Forest Entity. The Sabine Parties shall promptly, upon request by Forest, reimburse Forest for all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Forest Entities in connection with the cooperation of the Forest Entities contemplated by this Section 6.16 and shall indemnify and hold harmless Forest, its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the arrangement of the Refinancing and any information used in connection therewith, except with respect to any information provided by any of the Forest Entities. All non-public or otherwise confidential information regarding the Forest Entities obtained by the Sabine Parties or any of its Affiliates’ reputation their Representatives pursuant to this Section 6.16 shall be kept confidential in accordance with the Confidentiality Agreement; provided that the Sabine Parties shall be permitted to disclose confidential information to potential debt Financing Sources and hedging providers and, in each case, their Representatives without the prior written consent of Forest if such Persons who receive such information are subject to a customary confidentiality agreement with respect thereto. Any action taken by Forest at the specific request of the Sabine Parties in accordance with this Section 6.16(a) shall not be deemed to be a breach of or goodwillresult in any representation, warranty or covenant set forth in this Agreement.
Appears in 1 contract
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “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 8.11.2Effective Time, the Company shall and shall cause each of the Acquired Corporations and their respective Representatives to, at the sole expense of Parent with respect to reasonable out-of-pocket expenses actually incurred, provide such reasonable cooperation reasonably necessary to consummate the Financing in connection with the Transactions as may be reasonably requested by Parent or its Representatives. Without limiting the generality of the foregoing, the Company shall, and shall cause each of the Acquired Corporations to: (i) furnish the report of the Company’s auditor on the audited consolidated financial statements of the Company for the 2013, 2014 and 2015 fiscal years and use its reasonable best efforts to, to obtain the consent of such auditor to the use of its report thereon in accordance with normal custom and shall practice in connection with any Financing and use reasonable best efforts to cause such auditor to provide customary comfort letters to the Company Subsidiaries and its and their respective Representatives tounderwriters, initial purchasers or placement agents, as applicable, in each case at Buyer’s sole expenseconnection with any such Financing; (ii) furnish any financial statements, provide schedules or other financial data or information relating to Buyer such cooperation any of the Acquired Corporations 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies Parent or its Representatives as may be reasonably requested by Buyer for necessary to consummate any such Financing, including, without limitation, to satisfy any conditions relating to any Financing and any financial information about the completion Acquired Corporations required in order to prepare a pro forma financial statements of the Debt Parent and its Subsidiaries after giving effect to the transactions described herein; (iii) provide direct contact in a reasonable number of meetings, presentations and drafting sessions between (x) senior management and advisors, including auditors, of the Company and (y) the proposed lenders, underwriters, initial purchasers or placement agents, as applicable, and/or Parent’s or any of its Affiliate’s auditors in connection with, the Financing, ; (biv) participating in telephonic meetings and otherwise assist reasonably assisting with the preparation of appropriate offering materials, marketing materials and presentations (including, without limitation, a confidential offering memorandum); (v) obtain the cooperation and assistance of counsel and accountants to the Acquired Corporations in providing customary materials legal opinions, comfort letters and other services; (vi) provide customary presentationscertificates and other documents and instruments relating to such Financing and facilitate (including, due diligence sessions without limitation, by taking all corporate, limited liability company, partnership or other similar actions necessary to authorize) the execution and delivery of definitive pledge, security and guarantee documents and other definitive documents (including accounting due diligence sessionswhich documents shall only be required to become effective as of the Closing Date) and sessions with rating agencies the provision of guarantees and security and the performance of the other obligations contemplated in connection with the Debt Financing (which documents shall only be required to become effective as of the extent Closing Date); (vii) permit the reasonable use by Parent and customary its Affiliates of the Acquired Corporations’ logos for financings syndication and underwriting, as applicable, of Financing (subject to advance review of and consultation with respect to such type, use) so long as such logos are used solely (cx) reasonably assisting in the preparation of (i) customary bank information memoranda, lender and investor presentations, offering documents, offering a manner that is not intended to or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing likely to harm or disparage any Acquired Corporation or its reputation or goodwill and (iiy) 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 description of the United States federal business of the Acquired Corporations or the transactions contemplated by this Agreement; (viii) participate in meetings (including, without limitation, meetings with lenders), road shows, due diligence sessions, drafting sessions and state securities laws if any Group Company were a public reporting company, sessions with ratings agencies (dincluding the participation in such meetings of the Company’s senior management); (ix) using use reasonable best efforts to cause assist in procuring any necessary rating agency ratings or approvals; (x) at the CompanyParent’s independent registered accounting firm request, use reasonable best efforts to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in connection with ensure that 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 syndication efforts with respect to any auditor due diligencesuch Financing benefit materially from the Acquired Corporations’ existing lending relationships; and (xi) deliver to Parent, (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 five (35) Business Days business days prior to the Closing Date, all such documentation and other information as is reasonably requested in writing by Buyer at least ten (10) Business Days prior relating to the Closing to the extent Acquired Corporations required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation, the PATRIOT Act and the requirements of 31 C.F.R. §1010.2302001, (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 sameas amended, in each case, solely case to the extent reasonable and customary for financings of such type, (i) cooperating with internal and external counsel of Buyer requested by the Parent from the Company in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may be required to deliver in connection with the 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 Affiliates’ reputation or goodwill.writing at least ten
Appears in 1 contract
Samples: Agreement and Plan of Merger
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) provide Seller and the Company Consistent 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 8.11.2applicable Laws, the Company shall use reasonable best efforts to, and shall cause its Subsidiaries and each of its and its Subsidiaries’ respective officers and employees to use reasonable best efforts to, provide to cause the Company Subsidiaries Parent and its and their respective Representatives toSubsidiaries, in each case at BuyerParent’s sole expense, provide to Buyer such all 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested in writing by Buyer for Parent in connection with (i) one or more equity or debt offerings or issuances of Parent, that Parent and its Subsidiaries may pursue prior to the completion Effective Time and (ii) the assumption, restatement or refinancing of the Debt Company Term Loan Credit Agreements by Parent and its Subsidiaries (any such transaction in clauses (i) or (ii) a “Financing”), (b) participating including, without limitation, in telephonic meetings and otherwise reasonably assisting with the preparation of appropriate and event such action is customary materials customary presentations, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies in connection with the Debt Financing applicable Financing, using reasonable best efforts to: (i) cooperate with customary marketing efforts relating to the extent reasonable and customary for financings of such typeFinancing, (c) reasonably including assisting in the preparation of (i) customary bank confidential information memoranda, private placement memoranda, lender and investor presentations, offering documentsprospectuses, offering or private placement memoranda and other similar marketing customary offering documents and due diligence efforts for the Debt Financing and marketing materials; (ii) customary authorization assist in the preparation of rating agency presentations and representation lettersparticipate in a reasonable number of meetings with rating agencies, each as required in connection roadshows, due diligence sessions, drafting sessions and meetings with the Debt Financing, authorizing the distribution of information to prospective lenders and containing a representation that the public side of debt and equity investors, in each case, at such documents, if any, do not include any information about any Group Company places (which may be by audio 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, (dvideoconference) 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”) as coordinated reasonably in 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 advance thereof at mutually agreed times; (iii) reasonable assistance deliver documentation and cooperation to Buyer other information reasonably requested by sources of such Financing as promptly as reasonably practicable with respect to any auditor due diligence, (ex) 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 know-your-customer” ”, FINCEN and anti-money laundering rules and regulations, including the PATRIOT Act and (y) the requirements U.S. Treasury Department’s Office of 31 C.F.R. §1010.230Foreign Assets Control and the Foreign Corrupt Practices Act, in each case, to the extent such information is required pursuant to the applicable Financing; (hiv) facilitating deliver as promptly as reasonably practicable all financial information and assisting real property and other diligence materials related to the Company and its Subsidiaries customary or reasonably necessary for the arrangement or completion of such Financing; (v) direct the Company’s independent auditors to cooperate with any Financing that is a securities offering consistent with their customary practice, including requesting the Company’s independent accountants to prepare and deliver customary comfort letters (it being understood that such customary comfort letters shall include a SAS 100 review of any interim financial statements and “negative assurance” comfort covering any “stub” period) if customary for such Financing, in connection with any Financing to the applicable underwriters, arrangers, initial purchasers or placement agents thereof in each case, on customary terms and consistent with the customary practice of such independent accountants; (vi) assist with the preparation of pro forma financial information and pro forma financial statements solely with respect to the Company to the extent customary or reasonably necessary for the arrangement or completion of the Financing, including, if applicable, of the type that would be required by Regulation S-X and Regulation S-K promulgated under the Securities Act for a public offering of securities of Parent and for Parent’s preparation of pro forma financial statements; (vii) assist in the preparation of customary projections, estimates and other forward looking financial information regarding the future performance of the Company to the extent customary or reasonably necessary for the arrangement or completion of the Financing; and (viii) the execution and delivery of any such definitive financing documents, Table of Contents including certificates, credit agreements, indentures, notes, underwriting agreements, note purchase agreements, security documentationsecurities purchase agreements, dealer manager agreements, solicitation agent agreements, authorization letters, guarantees, schedules, perfection certificates or legal opinions and other definitive documents relating to the Debt Financing relating to the Group Companiesdocuments, 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 as may be required reasonably necessary to deliver in connection with the Debt facilitate such Financing, in each case, solely case in form and substance reasonably satisfactory to the extent reasonable and customary for financings party executing such document; provided that any such documents referred to in this clause (viii) shall be effective no earlier than the Effective Time (other than any authorization letters that are required to be given in advance of such type, and (j) obtaining and providing documents time in order for the Financing to Buyer (including draft payoff letters) relating to be consummated on or after the repayment of the Indebtedness and the release of related guarantees and Liens in accordance with the terms of this AgreementEffective Time). The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the its and its Subsidiaries’ logos of the Group Companies in connection with the Debt any Financing; provided that such logos are used solely in a manner that is not intended to, nor to or is reasonably likely to, to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of such party or its Subsidiaries. Notwithstanding any other provision set forth herein or in any other agreement between Parent and the Company or its affiliates, the parties hereto agree that Parent may share with the arrangers and sources of such Financing customary projections and other confidential information with respect to the Company (including information about the Company’s Subsidiaries) after giving effect to the Merger and the transactions contemplated hereby that the parties have cooperated in preparing, and that Parent, its Subsidiaries and such arrangers and sources of Financing may share information about the Company and its Subsidiaries (notwithstanding anything to the contrary herein or in the Confidentiality Agreements) with potential sources of the Financing in connection with any marketing efforts in connection with the Financing, provided that the recipients of its Affiliates’ reputation or goodwillsuch information agree to customary confidentiality arrangements in form and substance reasonably acceptable to the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Spirit Realty Capital, Inc.)
Financing Cooperation. 8.11.1. Buyer may determine, in its sole discretion, to obtain debt financing to fund any portion of the Purchase Price (the “Debt Financing”); provided that the Buyer shall, promptly after such Debt Financing is obtained (xa) 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 The Company shall use reasonable best efforts to, and shall use its reasonable best efforts to provide, and to cause the Company its Subsidiaries and its and each of their respective Representatives toto provide, in each case at Buyer’s sole expenseto Parent and Purchaser, provide to Buyer such reasonable 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 operations of the Group Companies), including as promptly as reasonably practical, (a) furnishing Buyer with the Required Financial Information and other pertinent information regarding the Group Companies as may be reasonably requested by Buyer for Parent and Purchaser and that is necessary or customary, proper or advisable in connection with the completion arrangement of any loan transaction or capital markets debt financing (whether public or private) undertaken by Parent in contemplation of the Debt consummation of the Transaction (any such financing, the “Financing”), including reasonable cooperation, in each case to the extent reasonably requested: (i) to provide, within a reasonable amount of time following such reasonable request, to Parent, Purchaser and their Financing Sources material financial and other pertinent information with respect to the Company and its Subsidiaries and the Transactions, including information and projections prepared by the Company relating to the Acquired Corporations required in connection with the preparation of the Finance Offering Documents and diligence documentation reasonably requested by persons in connection with the Financing; (ii) to cooperate with the marketing efforts of Parent, Purchaser and their Financing Sources for any of the Financing, including causing its Representatives to participate, during normal working hours and upon reasonable notice, in meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, a reasonable number of times; (biii) participating in telephonic meetings to assist with the preparation of materials relating to the Acquired Corporations for rating agency presentations, lender presentations, offering documents, information memoranda, road show presentations and otherwise reasonably similar documents (including assisting with the preparation of appropriate and customary materials customary presentationspro forma financial statements meeting the requirements of SEC Regulation S-X) necessary, due diligence sessions (including accounting due diligence sessions) and sessions with rating agencies proper or advisable in connection with the Debt Financing (collectively, the “Finance Offering Documents”); (iv) to assist Parent in obtaining consents of the Company’s auditors for use of their reports in any materials relating to the extent reasonable Financing and customary for financings of such type, “comfort letters” (c) reasonably assisting in the preparation of (i) including customary bank information memoranda, lender negative assurances and investor presentations, offering documents, offering or private placement memoranda and other similar marketing documents and due diligence efforts for the Debt Financing and (ii) 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“bring-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 down” letters from the Company’s independent registered accounting firm accountants on customary terms); and (v) to provide customary assistance, including (i) providing customary comfort letters (including “negative assurance comfort” and “change period comfort”) in 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 other 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 Act. Notwithstanding 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 typeforegoing, (i) cooperating with internal no obligation of the Company or its Subsidiaries under any certificate, document or instrument executed pursuant to the foregoing shall be effective until the Offer Acceptance Time (or such later time set forth in such certificate, document or instrument), and external counsel neither the Company nor its Subsidiaries nor any of Buyer in connection with providing customary back-up certificates and factual information regarding any legal opinion that such counsel may their respective Representatives shall be required to deliver take any action under any such certificate, document or instrument that is not contingent upon the consummation of the Offer (including the entry into any agreement that is effective before consummation of the Offer) or that would be effective prior thereto or take any corporate actions prior to the Closing, (ii) nothing herein shall require cooperation to the extent that such cooperation would, in the good faith determination of the Company, interfere unreasonably with the business or operations of the Company or its Subsidiaries, (iii) neither the Company nor any of its Subsidiaries shall be required to waive or amend any terms of this Agreement, (iv) neither the Company nor any of its Subsidiaries shall be required to take any action that will conflict with or violate its organizational documents or any applicable Legal Requirement, and (v) neither the Company nor any of its Subsidiaries shall be required to issue any offering or information document (other than as required to comply with the Company’s obligations pursuant to this Section 6.13). None of the Company nor any of its Subsidiaries shall be required to take any action that would subject it to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment (other than reasonable out-of-pocket costs that will be reimbursed by Parent pursuant to clause (b) or incur any other liability or provide or agree to provide any indemnity in connection with the Debt Financing, in each case, solely Financing or any of the foregoing that would be effective prior 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 AgreementClosing. The Company hereby consents, on behalf of itself and the Group Companies, consents to the use of the logos of the Group Companies Company and its Subsidiaries in connection with the Debt syndication or marketing of the Financing; provided that such logos are used solely in a manner that is reasonable and customary in connection with a Financing, and any in event, not intended to, nor is reasonably likely to, to harm or disparage the Company’s , its Subsidiaries or any of its Affiliates’ reputation or goodwilltheir marks.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Juno Therapeutics, Inc.)
