Financing Cooperation. Prior to the Effective Time, the Company shall, and shall cause the Company Subsidiaries to, and shall use its reasonable best efforts to cause its and their Representatives to, provide all customary cooperation and all customary financial information, in each case, that is reasonably requested by Parent or Merger Sub in connection with the Financing, including furnishing to Parent (i) audited consolidated balance sheets and related consolidated statements of operations, comprehensive income, stockholders’ equity and cash flows for the Company for each of the three most recently completed fiscal years of the Company ended at least sixty (60) days prior to the Closing Date prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year and (ii) unaudited condensed consolidated balance sheets and related condensed consolidated statements of operations, comprehensive income and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for the Company for the fiscal quarter ended June 30, 2018 and each subsequent fiscal quarter ended on a date that is at least forty (40) days before the Closing Date, in each case, to the extent it would not unreasonably interfere with the Company’s and the Company Subsidiaries’ business or operations. Notwithstanding anything to the contrary in this Section 7.13 and Section 7.14, neither the Company nor any Company Subsidiary shall pursuant to this Section 7.13 or Section 7.14 (I) be required to incur any fees, expenses or other liabilities prior to the Effective Time for which it is not previously or promptly reimbursed or simultaneously indemnified, (II) be required to cause any director, officer, member, partner, accountant, legal counsel, employee or other Representative of the Company or any Company Subsidiary to take any action that would reasonably be expected to result in such Person incurring any personal liability, (III) be required to waive or amend any terms of this Agreement, (IV) be required to provide any information that is prohibited or restricted from being provided by applicable Law or contractual obligation existing as of the date hereof or is legally privileged (provided, however, that the Company shall use its commercially reasonable efforts to provide an alternative means of disclosing or providing such information to the maximum extent permitted by Law or such contractual obligation or to the maximum extent that does not result in a loss of such legal privilege, as applicable, and in the event that the Company or any Company Subsidiary does not provide access or information in reliance on this clause, the Company shall provide notice to Parent that information is being withheld), (V) be required to, nor shall any of their directors, employees, officers, members, partners or managers be required to, adopt resolutions or consents to approve or authorize the execution of the agreements, documents and instruments pursuant to which the Financing is obtained or to execute, deliver or enter into, or perform any agreement, document or instrument (other than customary authorization letters or as set forth in Section 7.14), including any credit or other agreements, guarantees, pledge or security documents or certificates in connection with the Financing, in each case, that would be effective prior to the Effective Time and any such action, authorization, consent, approval, execution, delivery or performance will only be required of the respective directors, employees, officers, members, partners or managers of the Company and the Company Subsidiaries who retain their respective positions as of, and immediately after, the Effective Time (except in each case with respect to customary authorization letters or as set forth in Section 7.14), (VI) be required to (or be required to cause their Representatives to) enter into or approve any agreement or other documentation, or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Effective Time (except as set forth in Section 7.14), (VII) be required to (or be required to cause their Representatives to) provide any indemnity prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent, (VIII) be required to (or be required to cause their Representatives to) take any action that would conflict with or violate any charter or other organizational documents, (IX) be required to (or be required to cause their Representatives to) take any actions that would cause any representation or warranty in this Agreement to be breached by the Company or any Company Subsidiary or that would cause any condition set forth in Article VIII to fail to be satisfied (in each case unless Parent waives such breach or failure prior to the Company or any Company Subsidiary taking such action), (X) be required to (or be required to cause their Representatives to) prepare pro forma financial statements or any financial statements (other than those described in the first sentence of this Section 7.13(a)) that are not prepared in the ordinary course of its financial reporting practice, (XI) be required to (or be required to cause their Representatives to) deliver for inclusion in any syndication or offering materials any financial information with respect to a fiscal period that has not yet ended, or (XII) be required to (or be required to cause their Representatives to) provide opinions of internal or external counsel (except as set forth in Section 7.14). All non-public or otherwise confidential information regarding the Company or the Company Subsidiaries obtained by Parent, Merger Sub or their respective Representatives pursuant to this Section 7.13(a) or by them otherwise from or on behalf of the Company shall be kept confidential in accordance with the Confidentiality Agreement; provided that, notwithstanding anything to the contrary herein or in the Confidentiality Agreement, such information may be disclosed (i) to prospective lenders, underwriters, initial purchasers, dealer managers and agents during syndication and marketing of the Financing that enter into confidentiality arrangements customary for financing transactions of the same type as the Financing (including customary “click-through” confidentiality undertakings) and (ii) on a confidential basis to rating agencies. Any reference in this Agreement to the “Financing” (other than in Section 5.6) shall include any financing that Parent, Merger Sub and/or other Subsidiaries of Parent elects to obtain for the purpose of financing the transactions contemplated hereby or any transaction undertaken in connection herewith, whether or not pursuant to the Debt Commitment Letter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Ca, Inc.)
Financing Cooperation. Prior to the Effective Time, the Company shall, and shall cause the Company Subsidiaries to, and (a) The Acquirer shall use its reasonable best efforts to take (or cause to be taken) all actions, and to do (or cause to be done) all things necessary, proper or advisable to consummate and obtain the proceeds of the Debt Financing contemplated by the Debt Financing Commitments on the terms and conditions described in the Debt Financing Commitments (including any flex provisions applicable thereto), including using reasonable best efforts to (i) negotiate definitive agreements with respect thereto on the terms and conditions (including the flex provisions) contained therein or on other terms not materially less favorable, in the aggregate, to the Acquirer than those contained in the Debt Financing Commitments (as determined in the reasonable judgment of the Acquirer) and not in violation of this clause (a) (including clauses (A)-(C) below), (ii) satisfy (or, if deemed advisable by the Acquirer, seek a waiver of) on a timely basis all conditions applicable to the Acquirer in the Debt Financing Commitments that are within its control and otherwise comply with its obligations thereunder and pay related fees and expenses on the Closing Date or otherwise as and when due and payable, (iii) maintain in effect the Debt Financing Commitments in accordance with the terms thereof (except for amendments and supplements not prohibited by this clause (a)) until the Acquisition and the other transactions contemplated by this Agreement (the “Contemplated Transactions”) are consummated or this Agreement is terminated in accordance with its terms, and (iv) enforce its rights under the Debt Financing Commitments in the event of a breach by any counterparty thereto. The Acquirer shall have the right from time to time to amend, supplement, amend and restate or modify the Debt Financing Commitments; provided, that any such amendment, supplement, amendment and restatement or other modification shall not, without the prior written consent of the Company (A) add new (or adversely modify any existing) conditions precedent to the Debt Financing as set forth in the Debt Financing Commitments as in effect on the date hereof, (B) except as otherwise set forth herein, reduce the aggregate amount of the Debt Financing Commitments (including by changing the amount of fees to be paid or original issue discount of the Debt Financing as set forth in the Debt Financing Commitments) in a manner that would adversely impact the ability of the Acquirer to consummate the Acquisition or that would otherwise be expected to delay or impede the Acquisition or (C) otherwise be reasonably expected to (1) prevent, impede or delay the consummation of the Acquisition and the other Contemplated Transactions, (2) make the funding of the Debt Financing as set forth in the Debt Financing Commitments less likely to occur or (3) adversely impact the ability of the Acquirer to enforce their Representatives torights against the other parties to the Debt Financing Commitments or the definitive agreements with respect thereto. For the avoidance of doubt, provide all customary cooperation the Acquirer may amend, supplement, amend and all customary financial informationrestate, modify or replace the Debt Financing Commitments as in effect at the date hereof (x) to add or replace lenders, arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitments as of the date of this Agreement or (y) to increase the amount of Indebtedness contemplated by the Debt Financing Commitments. For purposes of this Schedule 4, references to “Debt Financing” shall include the financing contemplated by the Debt Financing Commitments (including any flex provisions applicable thereto) as permitted to be amended, supplemented, replaced or modified by this clause (a) (and, if applicable, shall include any Alternative Financing used to satisfy the obligations under this Agreement) and references to “Debt Financing Commitments” shall include such documents as permitted to be amended or modified by this clause (a) (and, if applicable, shall include any commitments in respect of Alternative Financing). The Acquirer shall (X) give the Company prompt notice of any material breach or default by any party to the Debt Financing Commitments or any Alternative Financing, in each casecase of which the Acquirer has become aware, and any purported termination or repudiation by any party of the Debt Financing Commitments or any Alternative Financing, in each case of which the Acquirer has become aware, or upon receipt of written notice of any material dispute or disagreement between or among the parties to the Debt Financing Commitments or any Alternative Financing and (Y) otherwise keep the Company reasonably informed of the status of the Acquirer’s efforts to arrange the Debt Financing upon Company’s reasonable request. In the event any portion of the Debt Financing becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Debt Financing Commitments, but alternative facilities are available on terms and conditions substantially similar to the Debt Financing Commitments, the Acquirer shall use its reasonable best efforts to promptly arrange to obtain alternative financing (“Alternative Financing”) from alternative sources in an amount sufficient to consummate the Contemplated Transactions; provided, that is reasonably requested by Parent the Acquirer shall use its reasonable best efforts to ensure that the terms of such Alternative Financing do not expand upon the conditions precedent or Merger Sub in connection with contingencies to the Financing, including furnishing to Parent (i) audited consolidated balance sheets and related consolidated statements of operations, comprehensive income, stockholders’ equity and cash flows for the Company for each funding of the three most recently completed fiscal years of the Company ended at least sixty (60) days prior to Debt Financing on the Closing Date prepared as set forth in accordance with GAAP applied the Commitment Letter in effect on a basis consistent with that the date of the most recent fiscal year and this Agreement or otherwise include terms (iiincluding any “flex” provisions) unaudited condensed consolidated balance sheets and related condensed consolidated statements of operations, comprehensive income and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for the Company for the fiscal quarter ended June 30, 2018 and each subsequent fiscal quarter ended on a date that is at least forty (40) days before the Closing Date, in each case, to the extent it would not unreasonably interfere with the Company’s and the Company Subsidiaries’ business or operations. Notwithstanding anything to the contrary in this Section 7.13 and Section 7.14, neither the Company nor any Company Subsidiary shall pursuant to this Section 7.13 or Section 7.14 (I) be required to incur any fees, expenses or other liabilities prior to the Effective Time for which it is not previously or promptly reimbursed or simultaneously indemnified, (II) be required to cause any director, officer, member, partner, accountant, legal counsel, employee or other Representative of the Company or any Company Subsidiary to take any action that would reasonably be expected to result in such Person incurring any personal liabilityprevent, (III) be required impede or materially delay the consummation of the Contemplated Transactions. In addition, the Acquirer shall have the right to waive or amend any terms of this Agreement, (IV) be required to provide any information that is prohibited or restricted from being provided substitute the net cash proceeds received by applicable Law or contractual obligation existing as of the Acquirer after the date hereof and prior to the Closing from consummated offerings or is legally privileged other incurrences of debt (including notes) by the Acquirer for all or any portion of the Debt Financing by reducing commitments under the Commitment Letter; provided, however, that the Company shall use its commercially reasonable efforts to provide an alternative means of disclosing or providing such information (w) to the maximum extent permitted by Law any such debt has a scheduled special or mandatory redemption right, such contractual obligation or right is not exercisable prior to the maximum extent that earlier of the Effective Date, the termination of this Agreement or the Long Stop Date, as applicable, (x) such offering or other incurrence of debt does not result in a loss of such legal privilegebreach or default under, as applicable, and in the event that the Company or any Company Subsidiary does not provide access or information in reliance on this clauseviolation of, the Company shall provide notice to Parent that information is being withheld)Commitment Letter, (Vy) be required to, nor shall any of their directors, employees, officers, members, partners or managers be required to, adopt resolutions or consents to approve or authorize the execution aggregate amount of the agreementsDebt Financing committed under the Commitment Letter following such reduction, documents together with other cash and instruments pursuant cash equivalents available to which the Financing Acquirer, is obtained or sufficient to execute, deliver or enter into, or perform any agreement, document or instrument (other than customary authorization letters or as set forth in Section 7.14), including any credit or other agreements, guarantees, pledge or security documents or certificates pay all amounts required to be paid in connection with the FinancingContemplated Transactions and (z) the Acquirer promptly notifies the Company of such substitution and reduction. If commitments under the Commitment Letter have been reduced to zero in connection with the preceding sentence, in each case, that would be effective prior to the Effective Time and any such action, authorization, consent, approval, execution, delivery or performance will only be required of the respective directors, employees, officers, members, partners or managers obligations of the Company and its Subsidiaries pursuant to clause (b) shall no longer be in effect. Further, the Acquirer shall have the right to substitute commitments in respect of other debt financings for all or any portion of the Debt Financing from the same and/or alternative bona fide financing sources so long as (v) such other debt financing does not result in a breach or default under, or violation of, the Commitment Letter (to the extent it remains in effect following such substitution), (w) the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to the Acquirer, is sufficient to pay all amounts required to be paid in connection with the Contemplated Transactions, (x) all conditions precedent to effectiveness of definitive documentation for such debt financing have been satisfied and the conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Acquirer than) the conditions precedent set forth in the Commitment Letter, (y) such substitution would not reasonably be expected to delay or prevent or make less likely the funding of the Debt Financing or such other debt financing on the Closing Date and (z) prior to funding of any loans thereunder, the commitments in respect of such debt financing are subject to restrictions on assignment that are in the aggregate substantially equivalent to or more favorable to the Company Subsidiaries who retain their respective positions as ofthat the corresponding restrictions set forth in the Commitment Letter, to supplement or replace the Debt Financing. True, correct and immediately after, complete copies of each amendment or modification to the Effective Time (except in each case Commitment Letter relating thereto and documents with respect to customary authorization letters each alternative or as set forth substitute financing commitment in Section 7.14respect thereof (each, a “New Debt Commitment Letter”), together with all related fee letters (VIsolely in the case of the fee letter, with only the fee amounts, dates, pricing caps, “market flex” and other economic terms redacted) be required to (or be required to cause their Representatives to) enter into or approve any agreement or other documentationeach, or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Effective Time (except as set forth in Section 7.14a “New Fee Letter”), (VII) will be required to (or be required to cause their Representatives to) provide any indemnity prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent, (VIII) be required to (or be required to cause their Representatives to) take any action that would conflict with or violate any charter or other organizational documents, (IX) be required to (or be required to cause their Representatives to) take any actions that would cause any representation or warranty in this Agreement to be breached by the Company or any Company Subsidiary or that would cause any condition set forth in Article VIII to fail to be satisfied (in each case unless Parent waives such breach or failure prior promptly provided to the Company or (and drafts thereof shall be made available to the Company prior to any Company Subsidiary taking such action), (X) be required to (or be required to cause their Representatives to) prepare pro forma financial statements or any financial statements (other than those described in the first sentence of this Section 7.13(a)) that are not prepared in the ordinary course of its financial reporting practice, (XI) be required to (or be required to cause their Representatives to) deliver for inclusion in any syndication or offering materials any financial information with respect to a fiscal period that has not yet ended, or (XII) be required to (or be required to cause their Representatives to) provide opinions of internal or external counsel (except as set forth in Section 7.14substitution). All non-public or otherwise confidential information regarding In the Company or the Company Subsidiaries obtained by Parentevent any New Debt Commitment Letter is obtained, Merger Sub or their respective Representatives pursuant to this Section 7.13(a) or by them otherwise from or on behalf of the Company shall be kept confidential in accordance with the Confidentiality Agreement; provided that, notwithstanding anything to the contrary herein or in the Confidentiality Agreement, such information may be disclosed (i) to prospective lenders, underwriters, initial purchasers, dealer managers and agents during syndication and marketing of the Financing that enter into confidentiality arrangements customary for financing transactions of the same type as the Financing (including customary “click-through” confidentiality undertakings) and (ii) on a confidential basis to rating agencies. Any any reference in this Agreement to the “Debt Financing” (other than in Section 5.6) shall include any the debt financing that Parent, Merger Sub and/or other Subsidiaries of Parent elects to obtain for contemplated by the purpose of financing the transactions contemplated hereby or any transaction undertaken in connection herewith, whether or not Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Commitment Letter” shall be deemed to include the Commitment Letter which is not superseded by a New Debt Commitment LetterLetter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and to each New Debt Commitment Letter to the extent then in effect.
Appears in 2 contracts
Samples: Investor Rights Agreement (MKS Instruments Inc), Investor Rights Agreement (Atotech LTD)
Financing Cooperation. Prior (a) On and prior to the Effective TimeClosing Date, upon the request of Purchaser, the Company shall, and Seller shall cause the Company Subsidiaries use reasonable best efforts to, and shall use its reasonable best efforts to cause the Company, its Subsidiaries, and their respective Representatives to, provide all reasonably cooperate in connection with any financing sought to be obtained by Purchaser in connection with the transactions contemplated by this Agreement, including any offering of securities as contemplated in the Debt Commitment Letter (the “Financing”), including, to the extent related to the Financing: (i) causing the Company’s management team, with appropriate seniority and expertise, to participate in due diligence and drafting sessions and rating agency presentations, if any; (ii) providing information with respect to the Company, including reserve reports and lease operating statements, reasonably requested by Purchaser or its Financing Sources; (iii) preparing and furnishing to Purchaser the Required Information and such other financial information concerning the Company as reasonably requested by Purchaser, including, without limitation, balance sheet, income statements and statements of cash flows for each of the most recently completed fiscal year ended at least ninety (90) days before the Closing Date, which such annual statement shall have been audited by independent accountants of the Company in accordance with GAAP and each subsequent interim financial quarter ended after December 31, 2019 and at least forty-five (45) days before the Closing Date, which such interim statements shall have been reviewed by the independent accountants for the Company as provided in the procedures specified by AU-C 930; (iv) assisting in the preparation of SEC filings to be made by Purchaser, offering memoranda, private placement memoranda, prospectuses, bank confidential information memoranda, rating agency presentations and similar documents (“Offering Documents”), including furnishing such operating and other data or information relating to the assets and operations of the Company as reasonably requested by Purchaser for inclusion therein; (v) (A) causing the independent accountants of the Company and its Subsidiaries to cooperate with Purchaser, including by participating in drafting sessions and accounting due diligence sessions, obtaining the consent of, and customary cooperation “comfort” letters from, such independent accountants (including by providing customary management letters and all requesting legal letters to obtain such consent) in connection with any securities offering by Purchaser if necessary or desirable for Purchaser’s use of the Company or its Subsidiaries’ financial statements, including written consents to use their audit reports relating to the Company and its Subsidiaries and to be named as an “Expert” in any document related to any such securities offering, (B) causing independent reserve engineers of the Company and its Subsidiaries to cooperate with Purchaser, including by participating in drafting sessions and reserve engineer due diligence sessions, obtaining the consent of, and customary financial informationcomfort letters from such independent reserve engineers (including, if necessary, by providing customary management letters and requesting legal letters to obtain such consent) in connection with any securities offering by Purchaser if necessary or desirable for Purchaser’s use of the Company or its Subsidiaries’ reserve report, including any necessary written consents to use their reserve reports relating to the Company and its Subsidiaries and to be named as an “Expert” in any document related to such securities offering and (C) cooperating with Purchaser’s legal counsel or independent reserve engineers in connection with any legal opinions that such legal counsel may be required to deliver or “comfort” letter that such independent engineers may be reasonably required to deliver, in each case, in connection with any securities offering; (vi) cooperating reasonably with any documentary or other due diligence requests, to the extent customary and reasonable; (vii) providing customary authorization letters authorizing the distribution of information to prospective lenders and containing customary representations that is such information does not contain a misstatement or omission; (viii) assisting in the amendment or novation of any of the Company’s Hxxxxx other than set forth on Schedule 6.24 of the Company Disclosure Letter, as applicable and in each case, on terms that are reasonably requested by Parent the Purchaser; provided that no obligation of the Company under any such amendments or Merger Sub novations shall be effective until the Closing Date; (ix) furnishing promptly all documentation and other information required by any Governmental Entity or as reasonably requested by any financing source under applicable “know your customer,” anti-bribery, anti-money laundering and beneficial ownership rules and regulations, including the PATRIOT Act, the FCPA, and economic sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department; (x) executing and delivering any definitive financing documents (and taking all organizational actions relating thereto, subject to the occurrence of the Effective Time), including any necessary pledge and security documents, as reasonably requested by Purchaser and otherwise facilitating the pledging of collateral in connection with the Financing, including furnishing taking reasonable actions necessary to Parent (i) audited consolidated balance sheets and related consolidated statements of operations, comprehensive income, stockholders’ equity and cash flows for permit the Company for each of the three most recently completed fiscal years of the Company ended at least sixty (60) days prior Financing Sources to the Closing Date prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year and (ii) unaudited condensed consolidated balance sheets and related condensed consolidated statements of operations, comprehensive income and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for the Company for the fiscal quarter ended June 30, 2018 and each subsequent fiscal quarter ended on a date that is at least forty (40) days before the Closing Date, in each case, to the extent it would not unreasonably interfere with evaluate the Company’s and the Company its Subsidiaries’ business or operations. Notwithstanding anything to assets, inventory, cash management and accounting systems, policies and procedures relating thereto for the contrary purpose of establishing collateral arrangements (including establishing bank and other accounts and blocked account and control agreements in this Section 7.13 connection with the foregoing), and Section 7.14, neither the Company nor any Company Subsidiary shall pursuant to this Section 7.13 or Section 7.14 (I) be required to incur any fees, expenses or other liabilities prior to the Effective Time for which it is not previously or promptly reimbursed or simultaneously indemnified, (II) be required to cause any director, officer, member, partner, accountant, legal counsel, employee or other Representative providing customary title information and title opinions; provided that no obligation of the Company or any Company Subsidiary to take of its Subsidiaries under any action that would reasonably be expected to result in such Person incurring any personal liability, (III) be required to waive or amend any terms of this Agreement, (IV) be required to provide any information that is prohibited or restricted from being provided by applicable Law or contractual obligation existing as of the date hereof or is legally privileged (provided, however, that the Company shall use its commercially reasonable efforts to provide an alternative means of disclosing or providing such information to the maximum extent permitted by Law or such contractual obligation or to the maximum extent that does not result in a loss of such legal privilege, as applicable, and in the event that the Company or any Company Subsidiary does not provide access or information in reliance on this clause, the Company shall provide notice to Parent that information is being withheld), (V) be required to, nor shall any of their directors, employees, officers, members, partners or managers be required to, adopt resolutions or consents to approve or authorize the execution of the agreements, documents and instruments pursuant to which the Financing is obtained or to execute, deliver or enter into, or perform any agreement, document or instrument (other than customary authorization letters or as set forth in Section 7.14)definitive financing documents, including any credit or other agreementspledge and security documents, guaranteesshall be effective until the Closing Date, pledge or security documents or certificates (xi) assisting with the repurchase, redemption and repayment of the Company’s existing indebtedness, including in connection with the Financing, in each case, that would be effective prior to delivery of required notices and obtaining the Effective Time Payoff Letter and any such action, authorization, consent, approval, execution, delivery or performance will only be other documents required of the respective directors, employees, officers, members, partners or managers of the Company and the Company Subsidiaries who retain their respective positions as of, and immediately after, the Effective Time (except in each case with respect to customary authorization letters or as set forth in by Section 7.14), (VI8.2(d) be required to (or be required to cause their Representatives to) enter into or approve any agreement or other documentation, or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Effective Time (except as set forth in Section 7.14), (VII) be required to (or be required to cause their Representatives to) provide any indemnity prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent, (VIII) be required to (or be required to cause their Representatives to) take any action that would conflict with or violate any charter or other organizational documents, (IX) be required to (or be required to cause their Representatives to) take any actions that would cause any representation or warranty in this Agreement to be breached by the Company or any Company Subsidiary or that would cause any condition set forth in Article VIII to fail to be satisfied (in each case unless Parent waives such breach or failure prior to the Company or any Company Subsidiary taking such action), (X) be required to (or be required to cause their Representatives to) prepare pro forma financial statements or any financial statements (other than those described in the first sentence of this Section 7.13(a)) that are not prepared in the ordinary course of its financial reporting practice, (XI) be required to (or be required to cause their Representatives to) deliver for inclusion in any syndication or offering materials any financial information with respect to a fiscal period that has not yet ended, or (XII) be required to (or be required to cause their Representatives to) provide opinions of internal or external counsel (except as set forth in Section 7.14). All non-public or otherwise confidential information regarding the Company or the Company Subsidiaries obtained by Parent, Merger Sub or their respective Representatives pursuant to this Section 7.13(a) or by them otherwise from or on behalf of the Company shall be kept confidential in accordance with the Confidentiality Agreement; provided that, notwithstanding anything to the contrary herein or in the Confidentiality Agreement, such information may be disclosed (i) to prospective lenders, underwriters, initial purchasers, dealer managers and agents during syndication and marketing of the Financing that enter into confidentiality arrangements customary for financing transactions of the same type as the Financing (including customary “click-through” confidentiality undertakings) and (ii) on a confidential basis to rating agencies. Any reference in this Agreement to the “Financing” (other than in Section 5.6) shall include any financing that Parent, Merger Sub and/or other Subsidiaries of Parent elects to obtain for the purpose of financing the transactions contemplated hereby or any transaction undertaken in connection herewith, whether or not pursuant to the Debt Commitment Letter.with Closing. 60
Appears in 2 contracts
Samples: Securities Purchase Agreement (WPX Energy, Inc.), Securities Purchase Agreement (WPX Energy, Inc.)
Financing Cooperation. Prior to the Effective Time, the (a) Company shall, and shall cause the Company its Subsidiaries to, and shall request their respective Representatives to, at Parent’s sole cost and expense, use its reasonable best efforts to cause its and their Representatives to, provide all customary cooperation and all customary financial information, in each case, that is reasonably requested by Parent or Parent, Merger Sub and their authorized Representatives in connection with the Financingarrangement, marketing and consummation of any debt financing by them, including furnishing to Parent (i) participating in a reasonable number of meetings and due diligence sessions on reasonable advance notice and at reasonable locations, (ii) promptly furnishing Parent, Merger Sub and their financing sources with (w) audited consolidated balance sheets and related consolidated statements of operations, comprehensive income, stockholders’ shareholder’s equity and cash flows of Company and its Subsidiaries for the fiscal years ending December 31, 2016, 2015 and 2014, and unaudited consolidated balance sheets and related consolidated statements of income and cash flows of Company and its Subsidiaries for each the six months ended June 30, 2017, (x) the Supplemental Financial Statements (as defined below), (y) all information regarding the Company and its Subsidiaries reasonably required for Parent to prepare pro forma and other financial information customarily included in a registered public offering of debt securities, and (z) all other historical financial and other pertinent historical information regarding Company and its Subsidiaries as may be reasonably requested in writing by Parent, including all historical financial statements and historical financial and other data, with respect to Company and its Subsidiaries and of the three most recently completed type reasonably determined by Parent to be required by Regulation S-X and Regulation S-K under the Securities Act for registered offerings of debt securities, to consummate the offerings of debt securities by Parent at the time during Company’s fiscal years of the Company ended year such offerings will be made, (iii) promptly furnishing Parent, Merger Sub and Parent’s financing sources with information requested under applicable “know your customer” and anti-money laundering rules and regulations, including USA PATRIOT Act, FATCA and OFAC at least sixty five (605) business days prior to the Closing Date prepared in accordance with GAAP applied on a basis consistent with that of Date, to the most recent fiscal year and (ii) unaudited condensed consolidated balance sheets and related condensed consolidated statements of operations, comprehensive income and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for the Company for the fiscal quarter ended June 30, 2018 and each subsequent fiscal quarter ended on a date that is extent requested at least forty ten (4010) business days before prior to the Closing Date, in each case, to the extent it would not unreasonably interfere (iv) assisting with the Company’s preparation of materials for rating agency presentations, offering documents, offering circulars or private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with any debt financing by the Parent (collectively, the “Offering Materials”) and Company agrees that Parent and the Company Subsidiaries’ business or operations. Notwithstanding anything Lenders shall be permitted to the contrary in this Section 7.13 and Section 7.14, neither the Company nor include any Company Subsidiary shall pursuant to this Section 7.13 or Section 7.14 (I) be required to incur any fees, expenses or other liabilities prior to the Effective Time for which it is not previously or promptly reimbursed or simultaneously indemnified, (II) be required to cause any director, officer, member, partner, accountant, legal counsel, employee or other Representative logos of the Company or any Company Subsidiary to take any action of its Subsidiaries in the Offering Materials, provided that such logos are not used in a manner that would reasonably be expected to result in such Person incurring any personal liabilityharm or disparage Company, its Subsidiaries or their marks, (IIIv) be cooperating in and assisting with the preparation of any pledge and security documents and other definitive financing documents and facilitating the execution and delivery at Closing of definitive documents relating to any debt financing and the pledge of collateral in connection with such financing , (vi) executing and delivering (or using reasonable best efforts to obtain from its advisors), and causing its affiliates to execute and deliver (or use reasonable best efforts to obtain from their advisors), customary certificates, accountants’ comfort letters (and consents of accountants for use of their reports in any materials relating to any debt financing and in connection with any filings required to waive be made by Parent pursuant to the Securities Act or amend the Exchange Act where the financial statements of Company and its Subsidiaries included (or incorporated by reference) in the Company SEC Reports or any terms of this Agreementinformation regarding the Company and its Subsidiaries are included or incorporated by reference), or other documents and instruments relating to guarantees and other matters ancillary to any debt financing as may be reasonably requested by Parent as necessary and customary in connection with any such financing, (IVvii) be required providing authorization letters to provide any Parent’s financing sources authorizing the distribution of information to prospective lenders or investors and containing a representation to such financing sources that is prohibited the public side versions of such documents, if any, do not include material non-public information about Company or restricted from being provided its Subsidiaries or Equity Interests, (viii) reasonably cooperating with Parent’s financing sources and their respective agents with respect to their due diligence, including by applicable Law giving access to documentation reasonably requested by persons in connection with capital markets transactions, (ix) taking all actions reasonably requested by Parent or contractual obligation existing Merger Sub to permit Parent’s financing sources and other prospective lenders to evaluate the Company’s and its Subsidiaries’ inventory, current assets, cash management systems and accounting system, policies and procedures relating thereto for the purpose of establishing collateral arrangements as of the date hereof Closing (including providing sufficient access to allow such lenders (or is legally privileged their agents or representatives) to conduct an initial field examination and inventory and rolling stock appraisals), (provided, however, that the Company shall use its commercially reasonable efforts to provide an alternative means of disclosing or providing such information to the maximum extent permitted by Law or such contractual obligation or to the maximum extent that does not result in a loss of such legal privilege, as applicablex) executing and delivering, and in causing its Subsidiaries to execute and deliver customary certificates (excluding solvency certificates), (xi) arranging for customary payoff letters, lien terminations and instruments of discharge to be delivered at Closing providing for the event that payoff, discharge and termination on the Closing Date of all existing indebtedness of the Company or any of its Subsidiaries contemplated to be paid off, discharged and satisfied and/or terminated on the Closing Date, (xii) assisting Parent in the satisfaction of conditions precedent set forth in any debt financing to the extent the satisfaction of such conditions requires the cooperation of or is within the control of the Company Subsidiary does not provide access or information in reliance on this clauseits Subsidiaries and (xiii) facilitating the entrance into other documents and instruments relating to guarantees, the Company shall provide notice pledge of collateral and other matters ancillary to any debt financing as may be reasonably requested by Parent that information is being withheld)in connection with any debt financing and otherwise reasonably facilitating the pledge of collateral and providing of guarantees contemplated by any debt financing (including, (V) be required towithout limitation, nor shall any of their directors, employees, officers, members, partners or managers be required to, adopt resolutions or consents to approve or authorize the execution of the executing and delivering agreements, documents and instruments pursuant to which the Financing is obtained or to execute, deliver or enter into, or perform any agreement, document or instrument (other than customary authorization letters or as set forth in Section 7.14), including any credit or other agreements, guarantees, pledge or security documents or certificates in connection with that facilitate the Financingcreation, perfection or enforcement of liens securing the debt financing as requested by Parent or Merger Sub or Parent’s financing sources, in each case, in form and substance reasonably satisfactory to Parent, and delivering original stock certificates to the Lenders or their agents or representatives, together with blank stock powers, at the Closing); provided, that (A) Company shall not be required to become subject to any obligations or liabilities with respect to such agreements or documents that would be become effective prior to the Effective Time and (B) none of Company or any such action, authorization, consent, approval, execution, delivery or performance will only be required of the respective directors, employees, officers, members, partners or managers of the Company and the Company its Subsidiaries who retain their respective positions as of, and immediately after, the Effective Time (except in each case with respect to customary authorization letters or as set forth in Section 7.14), (VI) shall be required to (provide access to or be required to cause their Representatives to) enter into disclose information if Company reasonably determines that such access or approve any agreement or other documentation, or agree to any change or modification disclosure would jeopardize the attorney-client privilege of any existing agreement or other documentation that would be effective prior to the Effective Time (except as set forth in Section 7.14), (VII) be required to (or be required to cause their Representatives to) provide any indemnity prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent, (VIII) be required to (or be required to cause their Representatives to) take any action that would conflict with or violate any charter or other organizational documents, (IX) be required to (or be required to cause their Representatives to) take any actions that would cause any representation or warranty in this Agreement to be breached by the Company or any Company Subsidiary of its Subsidiaries or that would cause contravene any condition set forth in Article VIII Law or any material contract to fail to be satisfied (in each case unless Parent waives such breach or failure prior to the which Company or any of its Subsidiaries is a party; provided that Company Subsidiary taking and its Subsidiaries will use reasonable best efforts to provide such action)information in a manner that does not violate such agreement or Law or waive such privilege. Parent shall, (X) be required following written demand from Company, reimburse Company for all reasonable and documented out-of-pocket costs incurred by Company or its Subsidiaries in connection with such cooperation contemplated by this Section 6.13. Parent and Merger Sub acknowledge and agree that Company and its affiliates and their respective Representatives shall not have any responsibility for, or incur any liability to (any person under or be required to cause in connection with, the arrangement or marketing of any debt financing that Parent or Merger Sub may raise in connection with the transactions contemplated by this Agreement. Parent and Merger Sub shall, on a joint and several basis, indemnify and hold harmless Company, its affiliates and their respective Representatives to) prepare pro forma financial statements from and against any and all damages suffered or incurred by them in connection with the arrangement or marketing of the debt financing and any financial statements information utilized in connection therewith (other than those described information provided in the first sentence of this Section 7.13(a)) that are not prepared in the ordinary course of its financial reporting practice, (XI) be required to (or be required to cause their Representatives to) deliver for inclusion in any syndication or offering materials any financial information with respect to a fiscal period that has not yet ended, or (XII) be required to (or be required to cause their Representatives to) provide opinions of internal or external counsel (except as set forth in Section 7.14). All non-public or otherwise confidential information regarding the writing by Company or the Company its Subsidiaries obtained by Parent, Merger Sub or their respective Representatives pursuant to this Section 7.13(a) or by them otherwise from or on behalf of the Company shall be kept confidential expressly for use in accordance with the Confidentiality Agreement; provided that, notwithstanding anything to the contrary herein or in the Confidentiality Agreement, such information may be disclosed (i) to prospective lenders, underwriters, initial purchasers, dealer managers connection therewith and agents during syndication and marketing of the Financing that enter into confidentiality arrangements customary for financing transactions of the same type as the Financing (including customary “click-through” confidentiality undertakings) and (ii) on a confidential basis to rating agencies. Any reference in this Agreement to the “Financing” (other than in Section 5.6) shall include any financing that Parent, Merger Sub and/or other Subsidiaries damages resulting from the gross negligence or willful misconduct of Parent elects to obtain for the purpose of financing the transactions contemplated hereby or any transaction undertaken in connection herewith, whether or not pursuant to the Debt Commitment Lettersuch indemnified Person).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Neff Corp), Agreement and Plan of Merger (United Rentals North America Inc)
Financing Cooperation. Prior to (a) During the Effective TimeInterim Period, the Company shall, and Plains Parties shall cause the Company Subsidiaries touse commercially reasonable efforts to provide, and shall use its commercially reasonable best efforts to cause their respective Representatives to provide, to Oryx and its Affiliates all cooperation reasonably requested in connection with obtaining, arranging, marketing and their Representatives syndicating the Debt Financing, including using commercially reasonable efforts with respect to, provide all customary cooperation : (i) participation by senior management of the Plains Parties in not more than (x) two lender or investor meetings and all customary financial information(y) one ratings agency meeting for each ratings agency that is assigning a rating to the Debt Financing, in each case, that is at such times and locations as to be mutually agreed; (ii) delivering to Oryx and its Financing Sources, as promptly as reasonably practicable, such financial statements and financial, operational or other information or data relating to the Plains Parties or the Plains Permian Assets to the extent reasonably requested by Parent or Merger Sub Oryx in connection with the FinancingDebt Financing and customary with respect thereto, including furnishing to Parent the (iA) Plains Audited Financial Statements and (B) the audited consolidated balance sheets sheet and the related consolidated statements statement of operations, comprehensive income, stockholders’ equity income of the Plains Permian Assets as of and cash flows for the Company period ended December 31, 2021, to be delivered no later than April 30, 2022, unless Closing has occurred prior to April 30, 2022; and (iii) provide documentation and other information reasonably requested by Oryx or the Financing Sources as required under applicable “know-your-customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and beneficial ownership regulations, which in any event shall be provided at least four Business Days prior to the Closing Date to the extent requested at least nine Business Days prior to the Closing Date. The Plains Parties shall deliver to Oryx and its Financing Sources, an unaudited consolidated balance sheet and summary of unaudited interim operating results for the Plains Permian Assets for each of the three most recently completed fiscal years of the Company ended quarter that ends both (x) after April 1, 2021 and (y) at least sixty (60) 60 days prior to the Closing Date prepared in accordance with GAAP applied on a basis consistent with Date. Notwithstanding any other provision set forth herein, the Plains Parties agree that of the most recent fiscal year and (ii) unaudited condensed consolidated balance sheets and they will share customary projections contained within any budget related condensed consolidated statements of operations, comprehensive income and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for the Company for Parties, and that Oryx may share such customary projections with the fiscal quarter ended June 30Financing Sources identified in the Debt Commitment Letter (and that such Financing Sources may share such information with other potential Financing Sources in connection with any marketing efforts in connection with the Debt Financing). Notwithstanding the foregoing, 2018 and each subsequent fiscal quarter ended on a date that is at least forty such requested cooperation shall not (401) days before the Closing Date, in each case, to the extent it would not unreasonably interfere with the Company’s and ongoing operations of the Company Subsidiaries’ business Plains Parties, (2) require the Plains Parties to pay any commitment or operations. Notwithstanding anything to the contrary in this Section 7.13 and Section 7.14, neither the Company nor other similar fee or make any Company Subsidiary shall pursuant to this Section 7.13 other payment or Section 7.14 (I) be required to incur any fees, expenses other liability or other liabilities prior to obligation in connection with the Effective Time for which it is not previously or promptly reimbursed or simultaneously indemnifiedDebt Financing, (II3) be required to cause any director, officer, member, partner, accountant, legal counsel, employee or other Representative of require the Company or any Company Subsidiary to take any action that would reasonably be expected to result in such Person incurring any personal liability, (III) be required Plains Parties to waive or amend any terms of this Agreement, any organizational documents of the Plains Parties or any other Contract to which any of them is a party, (IV4) be require the Plains Parties to make any representation or warranty, (5) require the execution and delivery of, or require any action, liability or obligation of the Plains Parties under, any certificate, agreement, arrangement, document or instrument relating to the Debt Financing or (6) require any Person other than the obligors under the Debt Financing to issue any bank information memoranda or similar documents required in relation to provide any information the Debt Financing. The Plains Parties hereby consent to the reasonable use of the logos of the Plains Parties in connection with the Debt Financing; provided, that such logos are used solely in a manner that is prohibited not intended to, nor reasonably likely to, disparage the Plains Parties or restricted from being provided by applicable Law or contractual obligation existing as impair the goodwill of the date hereof Plains Parties. In no event shall the Plains Parties or is legally privileged (providedany of their respective Affiliates be in breach of this Agreement because of the failure by the Plains Parties to deliver, however, that the Company shall after use of its commercially reasonable efforts to provide an alternative means of disclosing do so, any financial or providing such other information that is not currently readily available to the maximum extent permitted by Law or such contractual obligation or Plains Parties. The Plains Parties and their respective representatives shall be given a reasonable opportunity to the maximum extent that does not result review and comment, in a loss of such legal privilegeadvance, as applicable, and in the event that the Company or on any Company Subsidiary does not provide access or information in reliance on this clause, the Company shall provide notice to Parent that information is being withheld), (V) be required to, nor shall any of their directors, employees, officers, members, partners or managers be required to, adopt resolutions or consents to approve or authorize the execution of the agreements, marketing documents and instruments pursuant other materials that are to which the Financing is obtained be presented or discussed prior to execute, deliver or enter into, or perform during any agreement, document or instrument (other than customary authorization letters or as set forth in Section 7.14), including any credit or other agreements, guarantees, pledge or security documents or certificates meetings conducted in connection with the Financing, in each case, Debt Financing that would be effective prior relate to the Effective Time and Plains Parties or the Plains Permian Assets. To the extent that Oryx intends to include any such action, authorization, consent, approval, execution, delivery or performance will only be required of forecasts in the respective directors, employees, officers, members, partners or managers of marketing materials for the Company and the Company Subsidiaries who retain their respective positions as of, and immediately after, the Effective Time (except in each case with respect to customary authorization letters or as set forth in Section 7.14), (VI) be required to (or be required to cause their Representatives to) enter into or approve any agreement or other documentation, or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Effective Time (except as set forth in Section 7.14), (VII) be required to (or be required to cause their Representatives to) provide any indemnity prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent, (VIII) be required to (or be required to cause their Representatives to) take any action that would conflict with or violate any charter or other organizational documents, (IX) be required to (or be required to cause their Representatives to) take any actions that would cause any representation or warranty in this Agreement to be breached by the Company or any Company Subsidiary or that would cause any condition set forth in Article VIII to fail to be satisfied (in each case unless Parent waives such breach or failure prior to the Company or any Company Subsidiary taking such action), (X) be required to (or be required to cause their Representatives to) prepare pro forma financial statements or any financial statements Debt Financing (other than those described in the first sentence of this Section 7.13(a)) that are not prepared in the ordinary course of its financial reporting practice, (XI) be required to (or be required to cause their Representatives to) deliver budget projections for inclusion in any syndication or offering materials any financial information with respect to a fiscal period that has not yet ended, or (XII) be required to (or be required to cause their Representatives to) provide opinions of internal or external counsel (except as set forth in Section 7.14). All non-public or otherwise confidential information regarding the Company or Parties), Oryx shall include a disclaimer that such forecasts do not represent the Company Subsidiaries obtained by Parent, Merger Sub or their respective Representatives pursuant to this Section 7.13(a) or by them otherwise from or on behalf views of the Company shall be kept confidential in accordance with the Confidentiality Agreement; provided that, notwithstanding anything to the contrary herein or in the Confidentiality Agreement, such information may be disclosed (i) to prospective lenders, underwriters, initial purchasers, dealer managers and agents during syndication and marketing of the Financing that enter into confidentiality arrangements customary for financing transactions of the same type as the Financing (including customary “click-through” confidentiality undertakings) and (ii) on a confidential basis to rating agencies. Any reference in this Agreement to the “Financing” (other than in Section 5.6) shall include any financing that Parent, Merger Sub and/or other Subsidiaries of Parent elects to obtain for the purpose of financing the transactions contemplated hereby or any transaction undertaken in connection herewith, whether or not pursuant to the Debt Commitment LetterPlains Parties.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Plains All American Pipeline Lp), Agreement and Plan of Merger (Plains Gp Holdings Lp)
Financing Cooperation. Prior to the Effective Time, the Company shall, (a) Each of Parent and shall cause the Company Subsidiaries to, and Merger Sub shall use its reasonable best efforts to take (or cause its to be taken) all actions, and their Representatives toto do (or cause to be done) all things necessary, provide all customary cooperation proper or advisable to consummate and all customary financial informationobtain the proceeds of the Debt Financing contemplated by the Debt Financing Commitments on the terms and conditions described in the Debt Financing Commitments (including any flex provisions applicable thereto), including using reasonable best efforts to (i) negotiate definitive agreements with respect thereto on the terms and conditions (including the flex provisions) contained therein or on other terms not materially less favorable, in each casethe aggregate, that is reasonably requested to Parent (as determined in the reasonable judgment of Parent) and not in violation of this Section 5.2(a) (including clauses (A)-(C) below), (ii) satisfy (or, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions applicable to Parent or and Merger Sub in connection the Debt Financing Commitments that are within its control and otherwise comply with the Financing, including furnishing to Parent (i) audited consolidated balance sheets its obligations thereunder and pay related consolidated statements of operations, comprehensive income, stockholders’ equity fees and cash flows for the Company for each of the three most recently completed fiscal years of the Company ended at least sixty (60) days prior to the Closing Date prepared in accordance with GAAP applied expenses on a basis consistent with that of the most recent fiscal year and (ii) unaudited condensed consolidated balance sheets and related condensed consolidated statements of operations, comprehensive income and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for the Company for the fiscal quarter ended June 30, 2018 and each subsequent fiscal quarter ended on a date that is at least forty (40) days before the Closing Date, (iii) maintain in each case, to effect the extent it would not unreasonably interfere Debt Financing Commitments in accordance with the Company’s terms thereof (except for amendments and the Company Subsidiaries’ business or operations. Notwithstanding anything to the contrary in supplements not prohibited by this Section 7.13 5.2(a)) until the transactions contemplated by this Agreement are consummated or this Agreement is terminated in accordance with its terms, and Section 7.14(iv) enforce its rights under the Debt Financing Commitments in the event of a breach by any counterparty thereto. Parent shall have the right from time to time to amend, neither supplement, amend and restate or modify the Company nor Debt Financing Commitments; provided, that any Company Subsidiary shall pursuant to this Section 7.13 or Section 7.14 (I) be required to incur any feessuch amendment, expenses supplement, amendment and restatement or other liabilities modification shall not, without the prior to the Effective Time for which it is not previously or promptly reimbursed or simultaneously indemnified, (II) be required to cause any director, officer, member, partner, accountant, legal counsel, employee or other Representative written consent of the Company (A) add new (or adversely modify any Company Subsidiary to take any action that would reasonably be expected to result in such Person incurring any personal liability, (IIIexisting) be required to waive or amend any terms of this Agreement, (IV) be required to provide any information that is prohibited or restricted from being provided by applicable Law or contractual obligation existing as of the date hereof or is legally privileged (provided, however, that the Company shall use its commercially reasonable efforts to provide an alternative means of disclosing or providing such information conditions precedent to the maximum extent permitted by Law or such contractual obligation or to the maximum extent that does not result in a loss of such legal privilege, as applicable, and in the event that the Company or any Company Subsidiary does not provide access or information in reliance on this clause, the Company shall provide notice to Parent that information is being withheld), (V) be required to, nor shall any of their directors, employees, officers, members, partners or managers be required to, adopt resolutions or consents to approve or authorize the execution of the agreements, documents and instruments pursuant to which the Debt Financing is obtained or to execute, deliver or enter into, or perform any agreement, document or instrument (other than customary authorization letters or as set forth in Section 7.14)the Debt Financing Commitments as in effect on the date hereof, including any credit or other agreements(B) except as otherwise set forth herein, guarantees, pledge or security documents or certificates in connection with reduce the Financing, in each case, that would be effective prior to the Effective Time and any such action, authorization, consent, approval, execution, delivery or performance will only be required aggregate amount of the respective directors, employees, officers, members, partners Debt Financing Commitments (including by changing the amount of fees to be paid or managers original issue discount of the Company and the Company Subsidiaries who retain their respective positions as of, and immediately after, the Effective Time (except in each case with respect to customary authorization letters or Debt Financing as set forth in Section 7.14), (VIthe Debt Financing Commitments) be required to (or be required to cause their Representatives to) enter into or approve any agreement or other documentation, or agree to any change or modification of any existing agreement or other documentation in a manner that would be effective prior adversely impact the ability of Parent to consummate the Effective Time (except as set forth in Section 7.14), (VII) be required to (or be required to cause their Representatives to) provide any indemnity prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent, (VIII) be required to (or be required to cause their Representatives to) take any action that would conflict with or violate any charter or other organizational documents, (IX) be required to (or be required to cause their Representatives to) take any actions that would cause any representation or warranty in this Agreement to be breached by the Company or any Company Subsidiary Merger or that would cause any condition set forth in Article VIII otherwise be expected to fail to be satisfied (in each case unless Parent waives such breach delay or failure prior to impede the Company or any Company Subsidiary taking such action), (X) be required to (or be required to cause their Representatives to) prepare pro forma financial statements or any financial statements (other than those described in the first sentence of this Section 7.13(a)) that are not prepared in the ordinary course of its financial reporting practice, (XI) be required to (or be required to cause their Representatives to) deliver for inclusion in any syndication or offering materials any financial information with respect to a fiscal period that has not yet ended, or (XII) be required to (or be required to cause their Representatives to) provide opinions of internal or external counsel (except as set forth in Section 7.14). All non-public or otherwise confidential information regarding the Company or the Company Subsidiaries obtained by Parent, Merger Sub or their respective Representatives pursuant to this Section 7.13(a) or by them otherwise from or on behalf of the Company shall be kept confidential in accordance with the Confidentiality Agreement; provided that, notwithstanding anything to the contrary herein or in the Confidentiality Agreement, such information may be disclosed (i) to prospective lenders, underwriters, initial purchasers, dealer managers and agents during syndication and marketing of the Financing that enter into confidentiality arrangements customary for financing transactions of the same type as the Financing (including customary “click-through” confidentiality undertakings) and (ii) on a confidential basis to rating agencies. Any reference in this Agreement to the “Financing” (other than in Section 5.6) shall include any financing that Parent, Merger Sub and/or other Subsidiaries of Parent elects to obtain for the purpose of financing the transactions contemplated hereby or any transaction undertaken in connection herewith, whether or not pursuant to the Debt Commitment Letter.or
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Newport Corp), Agreement and Plan of Merger (MKS Instruments Inc)
Financing Cooperation. Prior to the Effective TimeClosing, subject to Section 5.5(b) and Section 5.5(c), the Company shall, and shall cause the Company its Subsidiaries to, and shall use its reasonable best efforts to cause its and their Representatives to, provide all customary cooperation and all customary financial information, in each case, case that is reasonably requested by Purchaser or Parent or Merger Sub in connection with the Financing, including furnishing any financing obtained or to be obtained by Purchaser or Parent (i) audited consolidated balance sheets and related consolidated statements of operations, comprehensive income, stockholders’ equity and cash flows for the Company for each purpose of financing the three most recently completed fiscal years transactions contemplated hereby or any transaction undertaken in connection therewith (it being understood that the receipt of the Company ended at least sixty any such financing is not a condition to Closing under this Agreement); provided, however, that (60a) days prior to the Closing Date prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year and (ii) unaudited condensed consolidated balance sheets and related condensed consolidated statements of operations, comprehensive income and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for the Company for the fiscal quarter ended June 30, 2018 and each subsequent fiscal quarter ended on a date that is at least forty (40) days before the Closing Date, in each case, no such cooperation shall be required to the extent it would not (i) unreasonably interfere with disrupt the conduct of the Company’s and or any of its Subsidiaries’ businesses, (ii) require the Company Subsidiaries’ business or operations. Notwithstanding anything to the contrary in this Section 7.13 and Section 7.14, neither the Company nor any Company Subsidiary shall pursuant to this Section 7.13 or Section 7.14 (I) be required its Subsidiaries to incur any fees, expenses or other liabilities prior to the Effective Time Closing for which it is not previously or promptly reimbursed or simultaneously indemnifiedindemnified by Purchaser or Parent, (IIiii) be required reasonably expected to cause any director, officer, member, partner, accountant, legal counsel, employee officer or other Representative employee of the Company or any Company Subsidiary of its Subsidiaries to take any action that would reasonably be expected to result in such Person incurring incur any personal liability, or (IIIiv) be required require the Company to waive or amend any terms of this Agreement, Agreement or any Material Contract; and (IVb) the Company and its Subsidiaries shall not be required to provide any information that is prohibited or restricted from being provided by applicable Law or contractual obligation existing as of the date hereof or is legally privileged (provided, however, that the Company shall use its commercially reasonable efforts to provide an alternative means of disclosing or providing such information to the maximum extent permitted by Law or such contractual obligation or to the maximum extent that does not result in a loss of such legal privilege, as applicable, and in the event that the Company or any Company Subsidiary does not provide access or information in reliance on this clause, the Company shall provide notice to Parent that information is being withheld), (V) be required to, nor shall any of their directors, employees, officers, members, partners or managers be required to, adopt resolutions or consents to approve or authorize the execution of the agreements, documents and instruments pursuant to which the Financing is obtained or to execute, deliver or enter into, or perform any agreement, document or instrument (other than customary authorization letters or as set forth in Section 7.14), including any credit or other agreements, guarantees, pledge or security documents or certificates in connection with the Financing, in each case, that would be effective prior to the Effective Time and any such action, authorization, consent, approval, execution, delivery or performance will only be required of the respective directors, employees, officers, members, partners or managers of the Company and the Company Subsidiaries who retain their respective positions as of, and immediately after, the Effective Time (except in each case with respect to customary authorization letters or as set forth in Section 7.14), (VI) be required cooperation to (or be required to cause their Representatives toi) enter into or approve any agreement or other documentation, or agree to any change or modification of any existing agreement or other documentation documentation, that would be effective prior to the Effective Time Closing or (except as set forth in Section 7.14), (VII) be required to (or be required to cause their Representatives toii) provide any indemnity prior to the Effective Time Closing for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Purchaser or Parent, (VIII) be required . Notwithstanding anything to (or be required to cause their Representatives to) take any action that would conflict with or violate any charter or other organizational documents, (IX) be required to (or be required to cause their Representatives to) take any actions that would cause any representation or warranty the contrary set forth in this Agreement to be breached by Agreement, the Company or any Company Subsidiary or that would cause any condition set forth in Article VIII Section 4.3(b), as its applies to fail to the Company’s obligations under this Section 5.12, shall be deemed satisfied (in each case unless Parent waives the Company has Intentionally Breached its obligations under this Section 5.12 and such breach or failure prior to the Company or any Company Subsidiary taking such action), (X) be required to (or be required to cause their Representatives to) prepare pro forma financial statements or any financial statements (other than those described in the first sentence of this Section 7.13(a)) that are not prepared in the ordinary course of its financial reporting practice, (XI) be required to (or be required to cause their Representatives to) deliver for inclusion in any syndication or offering materials any financial information with respect to a fiscal period that has not yet endedresults in, or (XII) be required is a cause of, Purchaser’s or Parent’s failure to (or be required to cause their Representatives to) provide opinions of internal or external counsel (except as set forth in Section 7.14). All non-public or otherwise confidential information regarding the Company or the Company Subsidiaries obtained by Parent, Merger Sub or their respective Representatives pursuant to this Section 7.13(a) or by them otherwise from or on behalf of the Company shall be kept confidential in accordance with the Confidentiality Agreement; provided that, notwithstanding anything to the contrary herein or in the Confidentiality Agreement, such information may be disclosed (i) to prospective lenders, underwriters, initial purchasers, dealer managers and agents during syndication and marketing of the Financing that enter into confidentiality arrangements customary for financing transactions of the same type as the Financing (including customary “click-through” confidentiality undertakings) and (ii) on a confidential basis to rating agencies. Any reference in this Agreement to the “Financing” (other than in Section 5.6) shall include obtain any financing that Parent, Merger Sub and/or other Subsidiaries of Parent elects to obtain for the purpose of financing the transactions contemplated hereby or any transaction undertaken in connection herewith, whether or not pursuant to the Debt Commitment Letterherein.
Appears in 2 contracts
Samples: Subscription Agreement (Cronos Group Inc.), Subscription Agreement (Altria Group, Inc.)
Financing Cooperation. (a) Prior to the Effective TimeClosing, the Company shall, and shall cause the Company its Subsidiaries to, and shall use its commercially reasonable best efforts to cause its and their Representatives respective representatives to, at Parent’s sole expense, provide all customary to Parent such cooperation and all customary financial information, in each case, that is reasonably requested by Parent or Merger Sub that is customary in connection with Parent’s efforts to obtain the FinancingDebt Financing (provided that such requested cooperation is consistent with applicable Law and does not unreasonably interfere with the operations of the Company or any of its Subsidiaries), including furnishing to Parent including: (i) audited furnishing Parent and its Debt Financing Sources as promptly as practicable with unaudited consolidated balance sheets and related consolidated statements of operations, comprehensive income, stockholders’ equity equity, and cash flows for the Company for each of the three most recently completed fiscal years of the Company ended at least sixty (60) days prior to the Closing Date prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year and (ii) unaudited condensed consolidated balance sheets and related condensed consolidated statements of operationsits Subsidiaries, comprehensive income and cash flows (in for each case, subject to normal year-end adjustments and absence of footnotes) for the Company for the fiscal quarter ended June 30, 2018 and each subsequent fiscal quarter ended on a after the date that is of the Most Recent Financial Statements but at least forty (40) calendar days before the Closing Date (collectively, the “Required Information”); (ii) making members of senior management with appropriate seniority and expertise available (including by conference call) for a reasonable number of meetings, presentations, and due diligence sessions; (iii) providing all information reasonably requested by Parent or the Debt Financing Sources regarding the Company and its Subsidiaries under applicable “know your customer,” anti-terrorism and anti-money laundering rules and regulations, including the Beneficial Ownership Regulation and the USA PATRIOT Act of 2001, at least five (5) business days prior to the Closing Date, in each case, requested at least ten (10) Business Days prior to the Closing Date; (iv) assisting with the preparation of any Debt Documents as may be reasonably requested by Parent; provided that no obligation of the Company or any of its Subsidiaries under any such documentation shall be effective until the Closing (other than as set forth in any authorization letter with respect to the Debt Financing); and (v) assisting Parent and the Debt Financing Sources in the preparation of bank information memoranda (including, to the extent it would necessary, an additional bank information memorandum that does not unreasonably interfere include material non-public information and executing customary authorization letters) for any of the Debt Financing to the extent reasonably requested by Parent. None of the Company or any of its respective Subsidiaries or any of their respective representatives shall be required, under the provisions of this Section 4.8(a) or otherwise in connection with the Debt Financing (x) to pay any commitment or other similar fee prior to the Closing that is not advanced by Parent or (y) to incur any expense unless such expense is promptly reimbursed by Parent following written request by the Company’s and . Parent shall indemnify the Company Subsidiaries’ business and its respective Subsidiaries and their respective representatives from and against any and all losses, damages, awards, fines, penalties, expenses, fees, costs and amounts paid in settlement in accordance with this Agreement (including reasonable fees and reasonable expenses of counsel) suffered or operations. Notwithstanding anything incurred by them in connection with (1) any action taken by them at the request of Parent pursuant to this Section 4.8 or in connection with the arrangement of the Debt Financing or (2) any information utilized in connection therewith, except to the contrary extent arising from (i) information provided by or on behalf of the Company or its Affiliates or (ii) the bad faith, willful misconduct or gross negligence of the Company or its Affiliates. Nothing contained in this Section 7.13 and Section 7.144.8 or otherwise shall require the Company to be an issuer or other obligor with respect to the Debt Financing prior to the Closing and, until the Closing occurs, neither the Company nor any Company Subsidiary its Subsidiaries nor their respective representatives shall pursuant to this Section 7.13 or Section 7.14 (I1) be required to incur any fees, expenses or other liabilities prior to the Effective Time for which it is not previously or promptly reimbursed or simultaneously indemnified, (II) be required to cause any director, officer, member, partner, accountant, legal counsel, employee or other Representative of the Company or any Company Subsidiary to take any action that would reasonably be expected to result in such Person incurring will conflict with or violate their respective certificate of incorporation, by-laws or comparable organizational documents or any personal liability, Laws or orders or (III2) be required to waive or amend any terms of this Agreement, (IV) be required to provide any information that is prohibited or restricted from being provided by applicable Law or contractual obligation existing as of the date hereof or is legally privileged (provided, however, that the Company shall use its commercially reasonable efforts to provide an alternative means of disclosing or providing such information to the maximum extent permitted by Law or such contractual obligation or to the maximum extent that does not result in a loss of such legal privilege, as applicable, and in the event that the Company or any Company Subsidiary does not provide access or information in reliance on this clause, the Company shall provide notice to Parent that information is being withheld), (V) be required to, nor shall any of their directors, employees, officers, members, partners or managers be required to, adopt pass resolutions or consents to consents, approve or authorize the execution of the agreements, documents and instruments pursuant to which the Financing is obtained or to execute, deliver or enter intoof, or perform execute any document, agreement, document certificate or instrument (or take any other than customary authorization letters corporate action with respect to the Debt Financing that is not contingent on the Closing or as set forth in Section 7.14), including any credit or other agreements, guarantees, pledge or security documents or certificates in connection with the Financing, in each case, that would be effective prior to the Effective Time and any such action, authorization, consent, approval, execution, delivery or performance will only be required of the respective directors, employees, officers, members, partners or managers of the Company and the Company Subsidiaries who retain their respective positions as of, and immediately after, the Effective Time Closing Date (except in each case with respect to other than customary authorization letters or as set forth in Section 7.14), (VI) be required to (or be required to cause their Representatives to) enter into or approve any agreement or other documentation, or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Effective Time (except as set forth in Section 7.14), (VII) be required to (or be required to cause their Representatives to) provide any indemnity prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent, (VIII) be required to (or be required to cause their Representatives to) take any action that would conflict with or violate any charter or other organizational documents, (IX) be required to (or be required to cause their Representatives to) take any actions that would cause any representation or warranty in this Agreement to be breached by the Company or any Company Subsidiary or that would cause any condition set forth in Article VIII to fail to be satisfied (in each case unless Parent waives such breach or failure prior to the Company or any Company Subsidiary taking such action), (X) be required to (or be required to cause their Representatives to) prepare pro forma financial statements or any financial statements (other than those described in the first sentence of this Section 7.13(aclause (v) above)) that are not prepared in the ordinary course of its financial reporting practice, (XI) be required to (or be required to cause their Representatives to) deliver for inclusion in any syndication or offering materials any financial information with respect to a fiscal period that has not yet ended, or (XII) be required to (or be required to cause their Representatives to) provide opinions of internal or external counsel (except as set forth in Section 7.14). All non-public or otherwise confidential information regarding the Company or the Company Subsidiaries obtained by Parent, Merger Sub or their respective Representatives pursuant to this Section 7.13(a) or by them otherwise from or on behalf of the Company shall be kept confidential in accordance with the Confidentiality Agreement; provided that, notwithstanding anything to the contrary herein or in the Confidentiality Agreement, such information may be disclosed (i) to prospective lenders, underwriters, initial purchasers, dealer managers and agents during syndication and marketing of the Financing that enter into confidentiality arrangements customary for financing transactions of the same type as the Financing (including customary “click-through” confidentiality undertakings) and (ii) on a confidential basis to rating agencies. Any reference in this Agreement to the “Financing” (other than in Section 5.6) shall include any financing that Parent, Merger Sub and/or other Subsidiaries of Parent elects to obtain for the purpose of financing the transactions contemplated hereby or any transaction undertaken in connection herewith, whether or not pursuant to the Debt Commitment Letter.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Forrester Research, Inc.)
Financing Cooperation. Prior to the Effective Time, the Company shall, and shall cause the Company Subsidiaries to, and shall use its reasonable best efforts to cause its and their Representatives to, provide all customary cooperation and all customary financial information, in each case, that is reasonably requested by Parent or Merger Sub in connection with the Financing, including furnishing to Parent (i) audited consolidated balance sheets and related consolidated statements of operations, comprehensive income, stockholders’ equity and cash flows for the Company for each of the three most recently completed fiscal years of the Company ended at least sixty (60) days prior to the Closing Date prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year and (ii) unaudited condensed consolidated balance sheets and related condensed consolidated statements of operations, comprehensive income and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for the Company for the fiscal quarter ended June 30, 2018 and each subsequent fiscal quarter ended on a date that is at least forty (40) days before the Closing Date, in each case, to the extent it would not unreasonably interfere with the Company’s and the Company Subsidiaries’ business or operations. Notwithstanding anything to the contrary in this Section 7.13 and Section 7.14, neither the Company nor any Company Subsidiary shall pursuant to this Section 7.13 or Section 7.14 (I) be required to incur any fees, expenses or other liabilities prior to the Effective Time for which it is not previously or promptly reimbursed or simultaneously indemnified, (II) be required to cause any director, officer, member, partner, accountant, legal counsel, employee or other Representative of the Company or any Company Subsidiary to take any action that would reasonably be expected to result in such Person incurring any personal liability, (III) be required to waive or amend any terms of this Agreement, (IV) be required to provide any information that is prohibited or restricted from being provided by applicable Law or contractual obligation existing as of the date hereof or is legally privileged (provided, however, that the The Company shall use its commercially reasonable efforts to provide an alternative means of disclosing or providing such information to the maximum extent permitted by Law or such contractual obligation or to the maximum extent that does not result in a loss of such legal privilege, as applicableto, and in the event that the Company shall direct its officers, directors, employees and other advisors or any Company Subsidiary does not provide access or information in reliance on this clause, the Company shall provide notice representatives to Parent that information is being withheld), (V) be required use their commercially reasonable efforts to, nor shall any of their directors, employees, officers, members, partners or managers be required to, adopt resolutions or consents to approve or authorize the execution of the agreements, documents provide all cooperation that is customary and instruments pursuant to which the Financing is obtained or to execute, deliver or enter into, or perform any agreement, document or instrument (other than customary authorization letters or as set forth in Section 7.14), including any credit or other agreements, guarantees, pledge or security documents or certificates reasonable in connection with the Financingarrangement of any debt financing or other alternative financing as may be reasonably requested in writing by Parent (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company), including (a) participation in a reasonable number of meetings, due diligence sessions and lender presentations, (b) assisting with the preparation of confidential information memoranda and similar documents, (c) furnishing Parent and its debt or other financing sources with such pertinent and customary information regarding the Company, including all presently available financial statements, financial projections and other financial data, in each casecase as reasonably requested in writing by Parent, that would be effective prior to (d) executing and delivering any customary placement agreements, pledge and security documents, other definitive financing documents or other requested certificates or documents, including a customary solvency certificate executed by the Effective Time and any such action, authorization, consent, approval, execution, delivery or performance will only be required of the respective directors, employees, officers, members, partners or managers Chief Financial Officer of the Company and on behalf of the Company Subsidiaries who retain their respective positions as (provided that such documents will not take effect until the Effective Time), and (e) obtaining any intellectual property assignment agreements relating to the Company Intellectual Property, and making all necessary filings with governmental registration agencies to update ownership title in, and to effectuate the release of, and immediately afterany security interests granted in the Company Intellectual Property, the Effective Time (except in each case with respect to customary authorization letters or as set forth reasonably requested in Section 7.14)writing by Parent. Notwithstanding the foregoing, (VI) neither the Company nor any of its officers, directors, employees and other advisors and representatives shall be required to (or be required to cause their Representatives to) enter into or approve any agreement or other documentation, or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Effective Time (except as set forth in Section 7.14), (VII) be required to (or be required to cause their Representatives to) provide any indemnity prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent, (VIII) be required to (or be required to cause their Representatives to) take any action that would conflict with subject any of them to actual or violate potential liability, to bear any charter cost or expense or to pay any commitment or other organizational documents, (IX) be required similar fee or make any other payment or incur any other liability or provide or agree to (or be required to cause their Representatives to) take provide any actions that would cause any representation or warranty indemnity in this Agreement to be breached by connection with the Company Equity Financing or any Company Subsidiary or that would cause any condition set forth in Article VIII to fail to be satisfied (in each case unless Parent waives such breach or failure prior to the Company alternative financing or any Company Subsidiary taking such action), (X) be required to (or be required to cause their Representatives to) prepare pro forma financial statements or any financial statements (other than those described in the first sentence of this Section 7.13(a)) that are not prepared in the ordinary course of its financial reporting practice, (XI) be required to (or be required to cause their Representatives to) deliver for inclusion in any syndication or offering materials any financial information with respect to a fiscal period that has not yet ended, or (XII) be required to (or be required to cause their Representatives to) provide opinions of internal or external counsel (except as set forth in Section 7.14). All non-public or otherwise confidential information regarding the Company or the Company Subsidiaries obtained by Parent, Merger Sub or their respective Representatives cooperation provided pursuant to this Section 7.13(a6.12, prior to the Effective Time, unless such action is contingent upon the Closing. Parent shall promptly, upon request by the Company, reimburse the Company and its officers, directors, employees and other advisors and representatives for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) or incurred by them otherwise from or on behalf in connection with the cooperation of the Company contemplated by this Section 6.12. Parent and Merger Sub shall be kept confidential jointly and severally indemnify, defend and hold harmless the Company and its officers, directors, employees and other advisors and representatives from and against any and all losses, claims, damages, liabilities, fees, expenses, judgments and fines arising in accordance with the Confidentiality Agreement; provided that, notwithstanding anything to the contrary herein whole or in the Confidentiality Agreement, such information may be disclosed (i) to prospective lenders, underwriters, initial purchasers, dealer managers and agents during syndication and marketing part out of the Financing that enter into confidentiality arrangements customary for financing transactions of the same type as the Financing (including customary “click-through” confidentiality undertakings) and (ii) on a confidential basis to rating agencies. Any reference in this Agreement to the “Financing” (other than in Section 5.6) shall include any financing that Parent, Merger Sub and/or other Subsidiaries of Parent elects to obtain for the purpose of financing the transactions contemplated hereby actions or any transaction omissions undertaken in connection herewith, whether or not pursuant to the Debt Commitment Letterthis Section 6.12.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Seracare Life Sciences Inc)
Financing Cooperation. (a) Prior to the Effective TimeClosing, the Company shallSeller shall provide, and shall cause the Company Business Subsidiaries toto provide, and shall use its commercially reasonable best efforts to cause its and their respective Representatives to, to provide all customary such cooperation and all customary financial information, in each case, that as is reasonably requested required and customary in connection with the arrangement of the Financing. Notwithstanding anything in this Agreement to the contrary, (A) none of Seller (at any time) or any of the Business Subsidiaries (prior to the Closing) shall be required to pay any commitment or other similar fee, incur or reimburse any costs or expenses (other than those fees, costs and expenses promptly reimbursed by Parent Purchaser) or Merger Sub incur any other liability or obligation of any kind in connection with the Financing, including furnishing to Parent (iB) audited consolidated balance sheets and related consolidated statements none of operations, comprehensive income, stockholders’ equity and cash flows for the Company for each Seller (at any time) or any of the three most recently completed fiscal years of the Company ended at least sixty Business Subsidiaries (60) days prior to the Closing Date prepared Closing) shall be required to execute, enter into or perform any binding agreement or commitment, or adopt any resolution or otherwise take any corporate or similar action or deliver any certificate, in accordance connection with GAAP applied on a basis consistent the Financing (other than delivery of customary authorization letters with that of respect to the most recent fiscal year Seller and (ii) unaudited condensed consolidated balance sheets and related condensed consolidated statements of operations, comprehensive income and cash flows (in each case, subject customary representation letters with respect to normal year-end adjustments and absence of footnotes) for the Company for the fiscal quarter ended June 30, 2018 and each subsequent fiscal quarter ended on a date that is at least forty (40) days before the Closing DateBusiness Subsidiaries, in each case, in connection with any Financing consisting of a syndicated credit facility), (C) nothing shall obligate Seller or any Business Subsidiary to provide, or cause to be provided, any legal opinion or to provide, or cause to be provided, any information or take, or cause to be taken, any action to the extent it would not unreasonably interfere with the Company’s and the Company Subsidiaries’ business or operations. Notwithstanding anything to the contrary in this Section 7.13 and Section 7.14, neither the Company nor any Company Subsidiary shall pursuant to this Section 7.13 or Section 7.14 (I) be required to incur any fees, expenses or other liabilities prior to the Effective Time for which it is not previously or promptly reimbursed or simultaneously indemnified, (II) be required to cause any director, officer, member, partner, accountant, legal counsel, employee or other Representative of the Company or any Company Subsidiary to take any action that would doing so could reasonably be expected to result in such Person incurring any personal liability, (IIIx) be required to waive or amend any terms a violation of this Agreement, (IV) be required to provide any information that is prohibited or restricted from being provided by applicable Law or contractual obligation existing as Seller’s or any Business Subsidiary’s organizational documents or any Contract binding on Seller or any of its Subsidiaries or any confidentiality obligations binding on Seller or any of its Subsidiaries or (y) the loss of any attorney-client privilege and (D) nothing shall obligate Seller or any Business Subsidiary to provide carve-out financial statements or other carve-out financial information, in each case whether audited or unaudited, in respect of the date hereof Business or is legally privileged (provided, however, that the Company Business Subsidiaries. The cooperation of Seller and the Business Subsidiaries shall use its commercially reasonable efforts to provide an alternative means not unreasonably interfere with ongoing operations of disclosing or providing such information to the maximum extent permitted by Law or such contractual obligation or to the maximum extent that does not result in a loss of such legal privilege, as applicable, and in the event that the Company Seller or any Company Subsidiary does not provide access of its Subsidiaries or information in reliance on this clause, otherwise materially impair the Company shall provide notice to Parent that information is being withheld), (V) be required to, nor shall ability of any Representative of Seller or any of their directorsthe Business Subsidiaries to carry out its duties to Seller or any of its Subsidiaries. Purchaser shall promptly, employeesupon request by Xxxxxx, officers, members, partners reimburse Seller for all reasonable out-of-pocket costs incurred by Seller or managers be required to, adopt resolutions or consents to approve or authorize the execution any of the agreements, documents and instruments pursuant to which the Financing is obtained or to execute, deliver or enter into, or perform any agreement, document or instrument (other than customary authorization letters or as set forth in Section 7.14), including any credit or other agreements, guarantees, pledge or security documents or certificates Business Subsidiaries in connection with the cooperation of Seller, the Business Subsidiaries and their respective Representatives contemplated by this Section 4.13 and shall indemnify and hold harmless Seller, the Business 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 (i) the Financing, (ii) any information used in each case, that would be effective prior to connection with the Effective Time and any such action, authorization, consent, approval, execution, delivery or performance will only be required of the respective directors, employees, officers, members, partners or managers of the Company and the Company Subsidiaries who retain their respective positions as of, and immediately after, the Effective Time Financing (except in each case with respect to customary authorization letters or as set forth in Section 7.14), (VI) be required to (or be required to cause their Representatives to) enter into or approve any agreement or other documentation, or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Effective Time (except as set forth in Section 7.14), (VII) be required to (or be required to cause their Representatives to) provide any indemnity prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified written information provided by or on behalf of Parent, (VIII) be required to (or be required to cause their Representatives to) take any action that would conflict with or violate any charter or other organizational documents, (IX) be required to (or be required to cause their Representatives to) take any actions that would cause any representation or warranty in this Agreement to be breached by the Company Seller or any Company Subsidiary or that would cause any condition set forth in Article VIII to fail to be satisfied (in each case unless Parent waives such breach or failure prior to of the Company or any Company Subsidiary taking such action), (X) be required to (or be required to cause their Representatives to) prepare pro forma financial statements or any financial statements (other than those described in the first sentence of this Section 7.13(a)) that are not prepared in the ordinary course of its financial reporting practice, (XI) be required to (or be required to cause their Representatives to) deliver Business Subsidiaries specifically for inclusion in any syndication or offering materials relating to the Financing), and (iii) any financial information with respect to a fiscal period that has not yet ended, or (XII) be required to (or be required to cause their Representatives to) provide opinions action taken by any of internal or external counsel (except as set forth in Section 7.14). All non-public or otherwise confidential information regarding them at the Company or the Company Subsidiaries obtained by Parent, Merger Sub or their respective Representatives request of Purchaser pursuant to this Section 7.13(a) or by them otherwise from or on behalf of the Company shall be kept confidential in accordance with the Confidentiality Agreement; provided that4.13, notwithstanding anything to the contrary herein or except, in the Confidentiality Agreement, such information may be disclosed case of clauses (i) and (iii), to prospective lendersthe extent such losses, underwritersdamages, initial purchasersclaims, dealer managers and agents during syndication and marketing costs or expenses arose from the gross negligence or willful misconduct of Seller or any of the Financing that enter into confidentiality arrangements customary for financing transactions Business Subsidiaries, as determined in a final, non-appealable judgment of the same type as the Financing (including customary “click-through” confidentiality undertakings) and (ii) on a confidential basis to rating agencies. Any reference in this Agreement to the “Financing” (other than in Section 5.6) shall include any financing that Parent, Merger Sub and/or other Subsidiaries court of Parent elects to obtain for the purpose of financing the transactions contemplated hereby or any transaction undertaken in connection herewith, whether or not pursuant to the Debt Commitment Lettercompetent jurisdiction.
Appears in 1 contract
Samples: Stock Purchase Agreement
Financing Cooperation. Prior (a) Subject to Section 6.14(f), until the Effective Timeearlier of the Closing and such time as this Agreement is terminated in accordance with ARTICLE VIII, the Company shall, and shall cause the Company Subsidiaries to, and shall use its and their reasonable best efforts to cause to, and shall direct its and their respective Representatives to, provide all customary cooperation and all customary financial information, in each case, case that is reasonably requested by Parent or Merger Sub in connection with any financing contemplated by the Debt Commitment Letter (including for the avoidance of doubt, the Debt Financing) (it being understood and agreed that the receipt of any such financing is not a condition to the Merger or any of its other obligations under this Agreement), including furnishing to Parent using commercially reasonable efforts to: (i) audited consolidated balance sheets participate in, and related consolidated statements of operationsassist with, comprehensive incomecustomary marketing efforts and marketing materials (including rating agency presentations, stockholders’ equity and cash flows if applicable) for the Company for each a financing of the three most recently completed fiscal years type contemplated by the Debt Commitment Letter; (ii) execute and deliver any definitive financing documents, including any amendments, joinders, guarantees, pledge documents, security documents and other definitive financing documents (including, assuming the representations in Section 5.6 are correct, a solvency certificate of the chief financial officer of the Company ended in the form attached to the Debt Commitment Letter) and otherwise facilitating the pledging of, and the granting, recording and perfection of security interests in, the collateral (including, to the extent applicable, delivery of securities and share certificates); (iii) furnish to the Debt Financing Sources at least sixty three (603) days Business Days prior to the Closing Date prepared (to the extent in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year and (ii) unaudited condensed consolidated balance sheets and related condensed consolidated statements of operations, comprehensive income and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for the Company for the fiscal quarter ended June 30, 2018 and each subsequent fiscal quarter ended on a date that is writing requested at least forty ten (4010) days before Business Days prior to the Closing Date) all documentation and other information required by regulatory authorities under applicable “know your customer”, beneficial ownership and anti-money laundering rules and regulations, including the PATRIOT Act; (iv) provide such other financial information regarding the Company or the Company Subsidiaries as shall be reasonably requested by Parent, Merger Sub or the Debt Financing Sources in connection with the Debt Financing; and (v) take such corporate actions as shall be reasonably requested to authorize and permit the consummation of the Debt Financing and to permit the proceeds thereof to be made available to finance the transactions contemplated in this Agreement (subject to any limits on the use of proceeds set forth herein); provided, that (x) none of the Company, the Company Subsidiaries or their Representatives or their Affiliates shall have, or be required to incur, any Liability or any obligation under any agreement or document related to the Financing, or to pay any commitment or similar fee or make any other payment or provide or agree to provide an indemnity in connection with the foregoing, in each case, to the extent it would effectiveness of which is not unreasonably interfere with conditioned upon the Company’s occurrence of the Closing Date; and the Company Subsidiaries’ business or operations. Notwithstanding anything to the contrary in this Section 7.13 and Section 7.14, neither the Company nor any Company Subsidiary (y) no party shall be required pursuant to this Section 7.13 or Section 7.14 (I6.14(a) be required to incur any fees, expenses or other liabilities prior to the Effective Time for which it is not previously or promptly reimbursed or simultaneously indemnified, (II) be required to cause any director, officer, member, partner, accountant, legal counsel, employee or other Representative of the Company or any Company Subsidiary to take any action that would reasonably be expected to result in such Person incurring any personal liabilitythe contravention of, (III) or that would reasonably be required expected to waive or amend any terms of this Agreement, (IV) be required to provide any information that is prohibited or restricted from being provided by applicable Law or contractual obligation existing as of the date hereof or is legally privileged (provided, however, that the Company shall use its commercially reasonable efforts to provide an alternative means of disclosing or providing such information to the maximum extent permitted by Law or such contractual obligation or to the maximum extent that does not result in a loss of such legal privilege, as applicable, and in the event that the Company or any Company Subsidiary does not provide access or information in reliance on this clause, the Company shall provide notice to Parent that information is being withheld), (V) be required to, nor shall any of their directors, employees, officers, members, partners or managers be required to, adopt resolutions or consents to approve or authorize the execution of the agreements, documents and instruments pursuant to which the Financing is obtained or to execute, deliver or enter into, or perform any agreement, document or instrument (other than customary authorization letters or as set forth in Section 7.14), including any credit or other agreements, guarantees, pledge or security documents or certificates in connection with the Financing, in each case, that would be effective prior to the Effective Time and any such action, authorization, consent, approval, execution, delivery or performance will only be required of the respective directors, employees, officers, members, partners or managers of the Company and the Company Subsidiaries who retain their respective positions as of, and immediately after, the Effective Time (except in each case with respect to customary authorization letters or as set forth in Section 7.14), (VI) be required to (or be required to cause their Representatives to) enter into or approve any agreement or other documentation, or agree to any change or modification violation of any existing agreement applicable Laws or other documentation that would be effective prior to the Effective Time (except as set forth in Section 7.14), (VII) be required to (of any contracts binding on such party or be required to cause their Representatives to) provide any indemnity prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent, (VIII) be required to (or be required to cause their Representatives to) take any action that would conflict with or violate any charter or other organizational documents, (IX) be required to (or be required to cause their Representatives to) take any actions that would cause any representation or warranty in this Agreement to be breached by the Company or any Company Subsidiary or that would cause any condition set forth in Article VIII to fail to be satisfied (in each case unless Parent waives such breach or failure prior to the Company or any Company Subsidiary taking such action), (X) be required to (or be required to cause their Representatives to) prepare pro forma financial statements or any financial statements (other than those described in the first sentence of this Section 7.13(a)) that are not prepared in the ordinary course of its financial reporting practice, (XI) be required to (or be required to cause their Representatives to) deliver for inclusion in any syndication or offering materials any financial information with respect to a fiscal period that has not yet ended, or (XII) be required to (or be required to cause their Representatives to) provide opinions of internal or external counsel (except as set forth in Section 7.14). All non-public or otherwise confidential information regarding the Company or the Company Subsidiaries obtained by Parent, Merger Sub or their respective Representatives pursuant to this Section 7.13(a) or by them otherwise from or on behalf of the Company shall be kept confidential in accordance with the Confidentiality Agreement; provided that, notwithstanding anything to the contrary herein or in the Confidentiality Agreement, such information may be disclosed (i) to prospective lenders, underwriters, initial purchasers, dealer managers and agents during syndication and marketing of the Financing that enter into confidentiality arrangements customary for financing transactions of the same type as the Financing (including customary “click-through” confidentiality undertakings) and (ii) on a confidential basis to rating agencies. Any reference in this Agreement to the “Financing” (other than in Section 5.6) shall include any financing that Parent, Merger Sub and/or other Subsidiaries of Parent elects to obtain for the purpose of financing the transactions contemplated hereby or any transaction undertaken in connection herewith, whether or not pursuant to the Debt Commitment Letterproperty.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Wireless Telecom Group Inc)
Financing Cooperation. (a) Prior to the Effective Time, the Company shall, and shall cause the Company Subsidiaries to, and shall use its reasonable best efforts to cause its and their Representatives to, provide all customary cooperation and all customary financial information, in each case, case that is reasonably requested by Parent or Merger Sub in connection with the FinancingDebt Financing (it being understood that the receipt of the Debt Financing is not a condition to the Merger), including furnishing to Parent using commercially reasonable efforts to: (i) audited consolidated balance sheets provide all information reasonably requested by Parent and related consolidated statements the Financing Parties (or any replacement thereof) customarily used in marketing materials for financing transactions comparable to the Financing, (ii) designate members of operations, comprehensive income, stockholders’ equity and cash flows for the Company for each of the three most recently completed fiscal years senior management of the Company ended to provide such cooperation in connection with the Debt Financing as is reasonably requested, at least sixty reasonable times to be mutually agreed, by Parent and the Financing Parties, (60iii) days prior provide reasonable cooperation with the due diligence efforts of the Financing Parties to the Closing Date prepared extent reasonable and customary, including delivery to Parent and the Financing Parties of such due diligence materials as are reasonably available and reasonably requested by Parent, (iv) reasonably assist Parent in accordance with GAAP applied on a basis consistent with that arranging for the replacement or continuation of the most recent fiscal year existing letters of credit of the Company and the Company Subsidiaries, and (iiv) unaudited condensed consolidated balance sheets reasonably assist in the preparation, of definitive financing documents as may be required by the Financing, and related condensed consolidated statements other customary documents as may be reasonably requested by Parent (including loan agreements, guarantees, as applicable), provided that in no event shall any of operationsthe foregoing be effective until as of immediately after the Closing; provided, comprehensive income and cash flows however, that (in each case, subject to normal year-end adjustments and absence of footnotesA) for the Company for the fiscal quarter ended June 30, 2018 and each subsequent fiscal quarter ended on a date that is at least forty (40) days before the Closing Date, in each case, no such cooperation shall be required to the extent it would not (I) unreasonably interfere with disrupt the conduct of the Company’s and business or create an unreasonable risk of damage or destruction to any property or assets of the Company or the Company Subsidiaries’ business or operations. Notwithstanding anything to the contrary in this Section 7.13 and Section 7.14, neither (II) require the Company nor any or the Company Subsidiary shall pursuant to this Section 7.13 or Section 7.14 (I) be required Subsidiaries to incur any fees, expenses or other liabilities liability prior to the Effective Time for which it has not received prior or simultaneous reimbursement or is not previously otherwise indemnified by or promptly reimbursed or simultaneously indemnifiedon behalf of Parent in accordance with Section 6.13(d) and Section 6.13(e), (IIIII) be required reasonably expected to cause any director, officer, member, partner, accountant, legal counsel, officer or employee or other Representative of the Company or any Company Subsidiary to take any action that would reasonably be expected to result in such Person incurring incur any personal liability, (IIIIV) be required require the Company to waive waive, amend or amend violate any terms of this Agreement, (IVV) be required require the Company to provide any information that is prohibited or restricted from being provided by applicable Law or contractual obligation existing as would give rise to a material risk of the date hereof loss of any attorney client, attorney work product or is legally privileged other legal privilege (provided, however, (X) that the Company shall use its commercially reasonable best efforts to provide an alternative means make appropriate substitute arrangements to permit reasonable disclosure not in violation of disclosing or providing such information to the maximum extent permitted by Law or to allow for such contractual obligation access or disclosure to the maximum extent that does not give rise to a material risk of the loss of such privilege and (Y) that the Company shall use reasonable best efforts to provide all documentation and other information required by Japanese bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations (including, the Act on Prevention of Transfer of Criminal Proceeds of Japan), relating to the Company and the Company Subsidiaries at least three (3) Business Days prior to Closing, in each case as reasonably requested (in English) by Parent at least eight (8) Business Days prior to Closing), (VI) conflict with or violate or that would reasonably be expected to conflict with, or result in a loss violation of, the Company Governing Documents or the organizational or governing documents of such legal privilegeany Company Subsidiary or result in, as applicableprior to the Effective Time, and in the event contravention of, or that would reasonably be expected to result in, prior to the Effective Time, a violation or breach of, or default under, any Material Contract to which the Company or any Company Subsidiary does not provide access or information in reliance on this clause, the Company shall provide notice to Parent that information is being withheld)a party, (VVII) be required to, nor shall any of their directors, employees, officers, members, partners or managers be required to, adopt resolutions or consents to approve or authorize that would unreasonably disrupt the execution conduct of the agreementsCompany’s business, documents and instruments pursuant (VIII) require the Company, any Company Subsidiary or their counsel to which the Financing is obtained or to execute, deliver or enter into, or perform provide any agreement, document or instrument (other than customary authorization letters or as set forth in Section 7.14), including any credit or other agreements, guarantees, pledge or security documents or certificates legal opinion in connection with the Financing, Financing or (IX) require the preparation or delivery of any financial statements or other financial data that are not prepared in each case, the ordinary course of its financial reporting practice; it being understood and agreed that would be effective prior to under no circumstances shall the Effective Time Company and any such action, authorization, consent, approval, execution, delivery or performance will only its Subsidiaries be required to provide projections, estimates or pro forma financial information, including any pro forma cost savings, synergies, capitalization or other pro forma adjustments to be incorporated into any pro forma financial information, all of which shall be the respective directors, employees, officers, members, partners or managers responsibility of Parent and Merger Sub; and (B) the Company and the Company Subsidiaries who retain their respective positions as of, and immediately after, the Effective Time (except in each case with respect to customary authorization letters or as set forth in Section 7.14), (VI) shall not be required to (or be required to cause their Representatives toI) enter into or approve any agreement or other documentation, or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Effective Time or (except as set forth in Section 7.14), (VII) be required to (or be required to cause their Representatives toII) provide any indemnity prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent, (VIII) be required to (or be required to cause their Representatives to) take any action that would conflict with or violate any charter or other organizational documents, (IX) be required to (or be required to cause their Representatives to) take any actions that would cause any representation or warranty in this Agreement to be breached by the Company or any Company Subsidiary or that would cause any condition set forth in Article VIII to fail to be satisfied (in each case unless Parent waives such breach or failure prior to the Company or any Company Subsidiary taking such action), (X) be required to (or be required to cause their Representatives to) prepare pro forma financial statements or any financial statements (other than those described in the first sentence of this Section 7.13(a)) that are not prepared in the ordinary course of its financial reporting practice, (XI) be required to (or be required to cause their Representatives to) deliver for inclusion in any syndication or offering materials any financial information with respect to a fiscal period that has not yet ended, or (XII) be required to (or be required to cause their Representatives to) provide opinions of internal or external counsel (except as set forth in Section 7.14). All non-public or otherwise confidential information regarding the Company or the Company Subsidiaries obtained by Parent, Merger Sub or their respective Representatives pursuant to this Section 7.13(a) or by them otherwise from or on behalf of the Company shall be kept confidential in accordance with the Confidentiality Agreement; provided that, notwithstanding anything to the contrary herein or in the Confidentiality Agreement, such information may be disclosed (i) to prospective lenders, underwriters, initial purchasers, dealer managers and agents during syndication and marketing of the Financing that enter into confidentiality arrangements customary for financing transactions of the same type as the Financing (including customary “click-through” confidentiality undertakings) and (ii) on a confidential basis to rating agencies. Any reference in this Agreement to the “Financing” (other than in Section 5.6) shall include any financing that Parent, Merger Sub and/or other Subsidiaries of Parent elects to obtain for the purpose of financing the transactions contemplated hereby or any transaction undertaken in connection herewith, whether or not pursuant to the Debt Commitment LetterTime.
Appears in 1 contract
Samples: Agreement and Plan of Merger (M.D.C. Holdings, Inc.)
Financing Cooperation. Prior (a) Without the prior written consent of the Company, Parent shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or replacement of, the Debt Financing Commitment if such amendment, modification, waiver or replacement (i) (A) reduces the aggregate amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount of the Debt Financing), (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Effective Timereceipt of the Debt Financing, (C) adversely affects the ability of Parent to enforce its rights against other parties to the Debt Financing Commitment or (D) could reasonably be expected to prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement (collectively, the Company shall“Restricted Debt Financing Commitment Amendments”) (provided that with prior written notice to the Company, Parent may amend the Debt Financing Commitment to add lenders, lead arrangers, bookrunners, syndication agents or similar Persons who had not executed the Debt Financing Commitment as of the date hereof and shall cause make any other changes required to add such lenders, lead arrangers, bookrunners, syndication agents or similar Person, but only if the Company Subsidiaries toaddition of such additional parties and such other changes, and individually or in the aggregate, would not result in the occurrence of a Restricted Debt Financing Commitment Amendment) or (ii) could reasonably be expected to result in the early termination of the Debt Financing Commitment. Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and consummate the Debt Financing as promptly as practicable on the terms and conditions described in the Debt Financing Commitment, including using its reasonable best efforts to (1) maintain in effect the Debt Financing Commitment until the funding of the Debt Financing at or prior to Closing, (2) satisfy on a timely basis (or obtain a waiver of) all conditions and their Representatives tocovenants required to be performed or satisfied by Parent to obtain the Debt Financing at the Closing as set forth in the Debt Financing Commitment, (3) negotiate, execute and deliver definitive agreements with respect to the Debt Financing on the terms and conditions contemplated by the Debt Financing Commitment (and promptly provide all customary cooperation copies of such executed and delivered definitive agreements to the Company), (4) fully pay when due any and all customary financial information, in each case, that is reasonably requested by Parent commitment fees or Merger Sub in connection with other fees or amounts payable under the Financing, including furnishing to Parent Debt Financing Commitment and (i5) audited consolidated balance sheets and related consolidated statements of operations, comprehensive income, stockholders’ equity and cash flows for the Company for each upon satisfaction of the three most recently completed fiscal years of conditions set forth in the Company ended Debt Financing Commitment, consummate the Debt Financing at least sixty (60) days or prior to the Closing Date prepared in accordance (including by enforcing its rights under the Debt Financing Commitment and, if necessary, taking enforcement action to cause the Debt Financing Sources and other Persons providing such Debt Financing to comply with GAAP applied on a basis consistent with that of their obligations under the most recent fiscal year and (ii) unaudited condensed consolidated balance sheets and related condensed consolidated statements of operations, comprehensive income and cash flows (in each caseDebt Financing Commitment and, subject to normal year-end adjustments the terms and absence upon the satisfaction of footnotes) for the Company for conditions of the fiscal quarter ended June 30Debt Financing Commitment, 2018 and each subsequent fiscal quarter ended on a date that is at least forty (40) days before to fund such Debt Financing by the Closing Date, in each case, to the extent it would not unreasonably interfere with the Company’s and the Company Subsidiaries’ business or operations. Notwithstanding anything to the contrary in this Section 7.13 and Section 7.14, neither the Company nor any Company Subsidiary shall pursuant to this Section 7.13 or Section 7.14 (I) be required to incur any fees, expenses or other liabilities prior to the Effective Time for which it is not previously or promptly reimbursed or simultaneously indemnified, (II) be required to cause any director, officer, member, partner, accountant, legal counsel, employee or other Representative of the Company or any Company Subsidiary to take any action that would reasonably be expected to result in such Person incurring any personal liability, (III) be required to waive or amend any terms of this Agreement, (IV) be required to provide any information that is prohibited or restricted from being provided by applicable Law or contractual obligation existing as of the date hereof or is legally privileged (provided, however, that the Company shall use its commercially reasonable efforts to provide an alternative means of disclosing or providing such information to the maximum extent permitted by Law or such contractual obligation or to the maximum extent that does not result in a loss of such legal privilege, as applicable, and in the event that the Company or any Company Subsidiary does not provide access or information in reliance on this clause, the Company shall provide notice to Parent that information is being withheld), (V) be required to, nor shall any of their directors, employees, officers, members, partners or managers be required to, adopt resolutions or consents to approve or authorize the execution of the agreements, documents and instruments pursuant to which the Financing is obtained or to execute, deliver or enter into, or perform any agreement, document or instrument (other than customary authorization letters or as set forth in Section 7.14), including any credit or other agreements, guarantees, pledge or security documents or certificates in connection with the Financing, in each case, that would be effective prior to the Effective Time and any such action, authorization, consent, approval, execution, delivery or performance will only be required of the respective directors, employees, officers, members, partners or managers of the Company and the Company Subsidiaries who retain their respective positions as of, and immediately after, the Effective Time (except in each case with respect to customary authorization letters or as set forth in Section 7.14), (VI) be required to (or be required to cause their Representatives to) enter into or approve any agreement or other documentation, or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Effective Time (except as set forth in Section 7.14), (VII) be required to (or be required to cause their Representatives to) provide any indemnity prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent, (VIII) be required to (or be required to cause their Representatives to) take any action that would conflict with or violate any charter or other organizational documents, (IX) be required to (or be required to cause their Representatives to) take any actions that would cause any representation or warranty in this Agreement to be breached by the Company or any Company Subsidiary or that would cause any condition set forth in Article VIII to fail to be satisfied (in each case unless Parent waives such breach or failure prior to the Company or any Company Subsidiary taking such action), (X) be required to (or be required to cause their Representatives to) prepare pro forma financial statements or any financial statements (other than those described in the first sentence of this Section 7.13(a)) that are not prepared in the ordinary course of its financial reporting practice, (XI) be required to (or be required to cause their Representatives to) deliver for inclusion in any syndication or offering materials any financial information with respect to a fiscal period that has not yet ended, or (XII) be required to (or be required to cause their Representatives to) provide opinions of internal or external counsel (except as set forth in Section 7.14). All non-public or otherwise confidential information regarding the Company or the Company Subsidiaries obtained by Parent, Merger Sub or their respective Representatives pursuant to this Section 7.13(a) or by them otherwise from or on behalf of the Company shall be kept confidential in accordance with the Confidentiality Agreement; provided that, notwithstanding anything to the contrary herein or in the Confidentiality Agreement, such information may be disclosed (i) to prospective lenders, underwriters, initial purchasers, dealer managers and agents during syndication and marketing of the Financing that enter into confidentiality arrangements customary for financing transactions of the same type as the Financing (including customary “click-through” confidentiality undertakings) and (ii) on a confidential basis to rating agencies. Any reference in this Agreement to the “Financing” (other than in Section 5.6) shall include any financing that Parent, Merger Sub and/or other Subsidiaries of Parent elects to obtain for the purpose of financing the transactions contemplated hereby or any transaction undertaken in connection herewith, whether or not pursuant to the Debt Commitment Letter.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Acadia Healthcare Company, Inc.)
Financing Cooperation. Prior From and after the date of this Agreement until the Closing (or until this Agreement is terminated pursuant to the Effective TimeSection 10.1), the Company Sellers shall, and shall cause the Company Subsidiaries Acquired Companies to, and shall use its commercially reasonable best efforts to cause its and their Representatives to, provide all customary reasonable cooperation and all customary financial information, in each case, that is assistance reasonably requested by Parent or Merger Sub Buyers in connection with the Financing, including furnishing to Parent (i) audited consolidated balance sheets and related consolidated statements arrangement of operations, comprehensive income, stockholders’ equity and cash flows for the Company for each of the three most recently completed fiscal years of the Company ended at least sixty (60) days prior any Debt Financing that is customary in connection with transactions similar to the Closing Date prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year and (ii) unaudited condensed consolidated balance sheets and related condensed consolidated statements of operations, comprehensive income and cash flows (in each casetransactions contemplated hereby, subject to normal year-end adjustments and absence of footnotes) for the Company for the fiscal quarter ended June 30, 2018 and each subsequent fiscal quarter ended on a date limitations set forth in this Section 6.18; provided that is at least forty (40) days before the Closing Date, in each case, nothing herein will require such cooperation to the extent it interferes, or would not unreasonably interfere reasonably be expected to interfere, with the Company’s and the Company Subsidiaries’ business or operations. Notwithstanding anything to operations of the contrary in this Section 7.13 Acquired Companies and Section 7.14, neither none of the Company nor any Company Subsidiary Sellers or the Acquired Companies shall pursuant to this Section 7.13 or Section 7.14 (I) be required to incur enter into any documents or commitments that would become effective prior to Closing or deliver any legal opinions in connection with the Debt Financing or pay or otherwise become liable for any indebtedness, fees, expenses or other liabilities prior to the Effective Time for which it is not previously or promptly reimbursed or simultaneously indemnified, (II) be required to cause any director, officer, member, partner, accountant, legal counsel, employee or other Representative of the Company or any Company Subsidiary to take any action that would reasonably be expected to result in such Person incurring any personal liability, (III) be required to waive or amend any terms of this Agreement, (IV) be required to provide any information that is prohibited or restricted from being provided by applicable Law or contractual obligation existing as of the date hereof or is legally privileged (provided, however, that the Company shall use its commercially reasonable efforts to provide an alternative means of disclosing or providing such information to the maximum extent permitted by Law or such contractual obligation or to the maximum extent that does not result in a loss of such legal privilege, as applicable, and in the event that the Company or any Company Subsidiary does not provide access or information in reliance on this clause, the Company shall provide notice to Parent that information is being withheld), (V) be required to, nor shall any of their directors, employees, officers, members, partners or managers be required to, adopt resolutions or consents to approve or authorize the execution of the agreements, documents and instruments pursuant to which the Financing is obtained or to execute, deliver or enter into, or perform any agreement, document or instrument (other than customary authorization letters or as set forth in Section 7.14), including any credit or other agreements, guarantees, pledge or security documents or certificates obligations in connection with the Financing, Debt Financing until after the Closing has occurred. Any information requested by Buyers in each case, that would connection with this Section 6.18 shall be effective prior deemed delivered to Buyers to the Effective Time extent contained in the Data Room and any such action, authorization, consent, approval, execution, delivery or performance will only be required of the respective directors, employees, officers, members, partners or managers of the Company and the Company Subsidiaries who retain their respective positions as of, and immediately after, the Effective Time (except in each case with respect to customary authorization letters or as set forth in Section 7.14), (VI) be required to (or be required to cause their Representatives to) enter into or approve any agreement or other documentation, or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Effective Time (except as set forth in Section 7.14), (VII) be required to (or be required to cause their Representatives to) provide any indemnity prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified information provided by or on behalf of Parentthe Sellers or any of the Acquired Companies in connection with this Section 6.18 shall be deemed to have been made available in the Data Room to Buyers. Buyers shall indemnify and hold harmless the Sellers, the Acquired Companies and their respective officers, directors, employees and Affiliates from and against any and all losses, claims, damages, costs, expenses, liabilities or judgments or amounts suffered or incurred by any of them in connection with the arrangement of any Debt Financing, any compliance with this Section 6.18 and any information used in connection therewith, except to the extent arising from the bad faith or fraud of the Sellers, the Acquired Companies or their respective officers, directors, employees, agents, Affiliates, advisors, and accountants. Buyers will promptly, upon request by the Sellers, reimburse the Sellers and the Acquired Companies, as applicable, for all reasonable and documented out-of-pocket costs (VIIIsuch as reasonable and documented travel costs and attorneys’ fees) be required to (incurred by the Sellers, the Acquired Companies and their respective Affiliates and representatives in connection their compliance with this Section 6.18. Notwithstanding this Section 6.18 or be required to cause their Representatives to) take any action that would conflict with or violate any charter or other organizational documents, (IX) be required to (or be required to cause their Representatives to) take any actions that would cause any representation or warranty anything else in this Agreement, Buyers affirm that it is not a condition to the Closing or to any of its other obligations under this Agreement that Buyers obtain financing for or related to be breached any of the transactions contemplated by the Company this Agreement (including all or any Company Subsidiary or portion of the Debt Financing). The parties agree that would cause any condition set forth in Article VIII to fail to be satisfied (in each case unless Parent waives such breach or failure prior to the Company or any Company Subsidiary taking such action), (X) be required to (or be required to cause their Representatives to) prepare pro forma financial statements or any financial statements (other than those described in the first sentence of this Section 7.13(a)) that are not prepared in 6.18 sets forth Sellers’ and the ordinary course of its financial reporting practice, (XI) be required to (or be required to cause their Representatives to) deliver for inclusion in any syndication or offering materials any financial information Acquired Companies’ sole obligations with respect to a fiscal period that has not yet ended, or (XII) be required to (or be required to cause their Representatives to) provide opinions of internal or external counsel (except as set forth in Section 7.14). All non-public or otherwise confidential information regarding the Company or the Company Subsidiaries obtained by Parent, Merger Sub or their respective Representatives pursuant to this Section 7.13(a) or by them otherwise from or on behalf of the Company shall be kept confidential in accordance with the Confidentiality Agreement; provided that, notwithstanding anything to the contrary herein or in the Confidentiality Agreement, such information may be disclosed (i) to prospective lenders, underwriters, initial purchasers, dealer managers and agents during syndication and marketing of the Financing that enter into confidentiality arrangements customary for financing transactions of the same type as the Financing (including customary “click-through” confidentiality undertakings) and (ii) on a confidential basis to rating agencies. Any reference in this Agreement to the “Financing” (other than in Section 5.6) shall include any financing that Parent, Merger Sub and/or other Subsidiaries of Parent elects to obtain for the purpose of financing the transactions contemplated hereby or any transaction undertaken in connection herewith, whether or not pursuant to the Debt Commitment LetterFinancing.
Appears in 1 contract
Samples: Share and Asset Purchase Agreement (Tremor International Ltd.)
Financing Cooperation. Prior to the Effective Time, the (a) The Company shall, and shall cause the Company its Subsidiaries to, and shall use its reasonable best efforts to cause its and their Representatives to, provide all customary cooperation and all customary financial information, in each case, that is reasonably requested by Parent in connection with financing arrangements (including, without limitation, assumptions, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations or Merger Sub prepayments of existing financing arrangements) as Parent may reasonably determine necessary or advisable in connection with the Financing, including furnishing to Parent completion of the Merger or the other transactions contemplated hereby. Such cooperation shall include (i) audited consolidated balance sheets participating in a reasonable number of meetings, presentations and related consolidated statements due diligence sessions in connection with such financing arrangements, (ii) providing reasonable and timely assistance with the preparation of operationsmaterials for presentations, comprehensive incomeoffering memoranda, stockholders’ equity prospectuses and cash flows for the Company for each of the three most recently completed fiscal years of the Company ended similar documents required in connection with such financing arrangements, (iii) as promptly as reasonably practical, and in any event at least sixty (60) 10 days prior to the Closing Date prepared in accordance Date, furnishing Parent and any of its financing sources with GAAP applied on a basis consistent with that of the most recent fiscal year and (iiA) unaudited condensed consolidated balance sheets and related condensed consolidated statements of operations, comprehensive income income, changes in equity and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for the Company for the fiscal quarter ended June 30March 31, 2018 2019 and each subsequent fiscal quarter ended on a date that is not a fiscal year end and that is at least forty (40) 40 days before the Closing Date, in each case, to the extent it would not unreasonably interfere with the Company’s Date and the Company Subsidiaries’ business or operations. Notwithstanding anything to the contrary in this Section 7.13 and Section 7.14, neither the Company nor any Company Subsidiary shall pursuant to this Section 7.13 or Section 7.14 (IB) be required to incur any fees, expenses or other liabilities prior to the Effective Time for which it is not previously or promptly reimbursed or simultaneously indemnified, (II) be required to cause any director, officer, member, partner, accountant, legal counsel, employee or other Representative of the Company or any Company Subsidiary to take any action that would reasonably be expected to result in such Person incurring any personal liability, (III) be required to waive or amend any terms of this Agreement, (IV) be required to provide any information that is prohibited or restricted from being provided by applicable Law or contractual obligation existing as of the date hereof or is legally privileged (provided, however, that the Company shall use its commercially reasonable efforts to provide an alternative means of disclosing or providing such information to the maximum extent permitted by Law or such contractual obligation or to the maximum extent that does not result in a loss of such legal privilege, as applicable, and in the event that the Closing Date occurs on a date that is more than 60 days following December 31, 2019, audited consolidated balance sheets and related audited consolidated statements of operations, comprehensive income (loss), changes in equity and cash flows for the fiscal year ended December 31, 2019, in each case prepared in accordance with GAAP and (iv) to the extent requested in writing at least ten (10) Business Days prior to the Closing, delivering at least three Business Days prior to the Closing all documentation and other information with respect to the Company or any Company Subsidiary does not provide access or information in reliance on this clauseand its Subsidiaries that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the USA PATRIOT Act. Notwithstanding the foregoing, the Company and its Subsidiaries and their respective Representatives shall provide notice to Parent that information is being withheld), (V) not be required toto enter into any letter, nor shall any of their directorscertificate, employeesdocument, officers, members, partners or managers be required to, adopt resolutions or consents to approve or authorize the execution of the agreements, documents and instruments pursuant to which the Financing is obtained or to execute, deliver or enter into, or perform any agreement, document agreement or instrument (other than customary authorization letters or as set forth in Section 7.14), including any credit or other agreements, guarantees, pledge or security documents or certificates in connection with the Financing, in each case, and representation letters) that would will be effective prior to the Effective Time Closing and any nothing in this Section 5.13 shall require (x) such action, authorization, consent, approval, execution, delivery cooperation to the extent it would disrupt unreasonably the business or performance will only be required of the respective directors, employees, officers, members, partners or managers operations of the Company and or any of its Subsidiaries or require any of them to take any actions that would reasonably be expected to violate applicable Law, contract or Organizational Documents, (y) the Board of Directors of the Company Subsidiaries who retain their respective positions as ofor the Board of Directors or similar governing body of any Subsidiary of the Company to adopt resolutions approving any letter, and immediately aftercertificate, the Effective Time document, agreement or instrument (except in each case with respect to other than customary authorization and representation letters or as set forth in Section 7.14), (VIto the extent necessary) be required to (or be required to cause their Representatives to) enter into or approve any agreement or other documentation, or agree to any change or modification of any existing agreement or other documentation that would will be effective prior to the Effective Time Closing or (except as set forth in Section 7.14), z) the Company or any of its Subsidiaries to incur any liability (VIIincluding due to any act or omission by the Company or any of its Subsidiaries or any of their respective Representatives) be required to (or be required to cause their Representatives to) provide any indemnity prior to the Effective Time Closing for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent, (VIII) be required . It is understood and agreed that a failure to (or be required to cause their Representatives to) take any action that would conflict with or violate any charter or other organizational documents, (IX) be required to (or be required to cause their Representatives to) take any actions that would cause any representation or warranty in this Agreement to be breached by consummate a financing of the Company or any Company Subsidiary or that would cause any condition set forth in Article VIII to fail to be satisfied (in each case unless Parent waives such breach or failure prior to the Company or any Company Subsidiary taking such action), (X) be required to (or be required to cause their Representatives to) prepare pro forma financial statements or any financial statements (other than those type described in the first sentence of this Section 7.13(a)5.13(a) that are not prepared shall not, in the ordinary course and of its financial reporting practiceitself, (XI) be required to (or be required to cause their Representatives to) deliver for inclusion in any syndication or offering materials any financial information with respect to constitute a fiscal period that has not yet ended, or (XII) be required to (or be required to cause their Representatives to) provide opinions of internal or external counsel (except as set forth in Section 7.14). All non-public or otherwise confidential information regarding failure by the Company or the Company Subsidiaries obtained by Parent, Merger Sub or their respective Representatives pursuant to satisfy its obligations under this Section 7.13(a) or by them otherwise from or on behalf of the Company shall be kept confidential in accordance with the Confidentiality Agreement; provided that, notwithstanding anything to the contrary herein or in the Confidentiality Agreement, such information may be disclosed (i) to prospective lenders, underwriters, initial purchasers, dealer managers and agents during syndication and marketing of the Financing that enter into confidentiality arrangements customary for financing transactions of the same type as the Financing (including customary “click-through” confidentiality undertakings) and (ii) on a confidential basis to rating agencies. Any reference in this Agreement to the “Financing” (other than in Section 5.6) shall include any financing that Parent, Merger Sub and/or other Subsidiaries of Parent elects to obtain for the purpose of financing the transactions contemplated hereby or any transaction undertaken in connection herewith, whether or not pursuant to the Debt Commitment Letter5.13(a).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cousins Properties Inc)
Financing Cooperation. Prior to the Effective Time, the (a) The Company shall, and shall cause the Company its Subsidiaries to, and shall use its reasonable best efforts to cause its and their Representatives to, provide all customary cooperation and all customary financial information, in each case, that is reasonably requested by Parent in connection with financing arrangements (including, without limitation, assumptions, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations or Merger Sub prepayments of existing financing arrangements) as Parent may reasonably determine necessary or advisable in connection with the Financing, including furnishing to Parent completion of the Merger or the other transactions contemplated hereby. Such cooperation shall include (i) participating in a reasonable number of meetings, presentations and due diligence sessions in connection with such financing arrangements, (ii) providing reasonable and timely assistance with the preparation of materials for presentations, offering memoranda, prospectuses and similar documents required in connection with such financing arrangements (including relating to the preparation of pro forma financial statements), (iii) as promptly as reasonably practical, and in any event at least 20 days prior to the Closing Date, furnishing Parent and any of its financing sources with (A) audited consolidated balance sheets and related audited consolidated statements of operations, comprehensive incomeincome (loss), stockholders’ changes in equity and cash flows for the Company for each of the three most recently completed fiscal years of the Company ended at least sixty (60) days prior to the Closing Date Date, in each case, prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year and (iiB) unaudited condensed consolidated balance sheets and related condensed consolidated statements of operations, comprehensive income income, changes in equity and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for the Company for the fiscal quarter ended June 30, 2018 and each subsequent fiscal quarter ended on a date that is at least forty (40) days before prior to the Closing DateDate (other than the fourth fiscal quarter of any fiscal year), in each case, prepared in accordance with GAAP and reviewed by the Company’s independent public accountants, and (C) any other information regarding the Company and its Subsidiaries that Parent may reasonably request in connection with the arrangement or execution of the Financing, (iv) obtain customary authorization letters, comfort letters and accountants’ consent letters as may be requested by Parent, and (v) to the extent it would not unreasonably interfere requested in writing at least ten (10) Business Days prior to the Closing, delivering at least three Business Days prior to the Closing all documentation and other information with the Company’s and respect to the Company Subsidiaries’ business or operationsand its Subsidiaries that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the USA PATRIOT Act. Notwithstanding anything to the contrary in this Section 7.13 and Section 7.14foregoing, neither the Company nor any Company Subsidiary and its Subsidiaries and their respective Representatives shall pursuant to this Section 7.13 or Section 7.14 (I) not be required to incur enter into any feesletter, expenses or other liabilities prior to the Effective Time for which it is not previously or promptly reimbursed or simultaneously indemnifiedcertificate, (II) be required to cause any directordocument, officer, member, partner, accountant, legal counsel, employee or other Representative of the Company or any Company Subsidiary to take any action that would reasonably be expected to result in such Person incurring any personal liability, (III) be required to waive or amend any terms of this Agreement, (IV) be required to provide any information that is prohibited or restricted from being provided by applicable Law or contractual obligation existing as of the date hereof or is legally privileged (provided, however, that the Company shall use its commercially reasonable efforts to provide an alternative means of disclosing or providing such information to the maximum extent permitted by Law or such contractual obligation or to the maximum extent that does not result in a loss of such legal privilege, as applicable, and in the event that the Company or any Company Subsidiary does not provide access or information in reliance on this clause, the Company shall provide notice to Parent that information is being withheld), (V) be required to, nor shall any of their directors, employees, officers, members, partners or managers be required to, adopt resolutions or consents to approve or authorize the execution of the agreements, documents and instruments pursuant to which the Financing is obtained or to execute, deliver or enter into, or perform any agreement, document agreement or instrument (other than customary authorization letters or as set forth in Section 7.14), including any credit or other agreements, guarantees, pledge or security documents or certificates in connection with the Financing, in each case, and representation letters) that would will be effective prior to the Effective Time Closing and any nothing in this Section 5.14(a) shall require (x) such action, authorization, consent, approval, execution, delivery cooperation to the extent it would disrupt unreasonably the business or performance will only be required of the respective directors, employees, officers, members, partners or managers operations of the Company and or any of its Subsidiaries or require any of them to take any actions that would reasonably be expected to violate applicable Law, contract or Organizational Documents, (y) the board of directors or similar governing body of the Company Subsidiaries who retain their respective positions as ofor any Subsidiary of the Company to adopt resolutions approving any letter, and immediately aftercertificate, the Effective Time document, agreement or instrument (except in each case with respect to other than customary authorization and representation letters or as set forth in Section 7.14), (VIto the extent necessary) be required to (or be required to cause their Representatives to) enter into or approve any agreement or other documentation, or agree to any change or modification of any existing agreement or other documentation that would will be effective prior to the Effective Time Closing or (except as set forth in Section 7.14), (VIIz) be required the Company or any of its Subsidiaries to (or be required to cause their Representatives to) provide incur any indemnity liability prior to the Effective Time Closing for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent, (VIII) be required . It is understood and agreed that a failure to (or be required to cause their Representatives to) take any action that would conflict with or violate any charter or other organizational documents, (IX) be required to (or be required to cause their Representatives to) take any actions that would cause any representation or warranty in this Agreement to be breached by consummate a financing of the Company or any Company Subsidiary or that would cause any condition set forth in Article VIII to fail to be satisfied (in each case unless Parent waives such breach or failure prior to the Company or any Company Subsidiary taking such action), (X) be required to (or be required to cause their Representatives to) prepare pro forma financial statements or any financial statements (other than those type described in the first sentence of this Section 7.13(a)5.14(a) that are not prepared shall not, in the ordinary course and of its financial reporting practiceitself, (XI) be required to (or be required to cause their Representatives to) deliver for inclusion in any syndication or offering materials any financial information with respect to constitute a fiscal period that has not yet ended, or (XII) be required to (or be required to cause their Representatives to) provide opinions of internal or external counsel (except as set forth in Section 7.14). All non-public or otherwise confidential information regarding failure by the Company or the Company Subsidiaries obtained by Parent, Merger Sub or their respective Representatives pursuant to satisfy its obligations under this Section 7.13(a) or by them otherwise from or on behalf of the Company shall be kept confidential in accordance with the Confidentiality Agreement; provided that, notwithstanding anything to the contrary herein or in the Confidentiality Agreement, such information may be disclosed (i) to prospective lenders, underwriters, initial purchasers, dealer managers and agents during syndication and marketing of the Financing that enter into confidentiality arrangements customary for financing transactions of the same type as the Financing (including customary “click-through” confidentiality undertakings) and (ii) on a confidential basis to rating agencies. Any reference in this Agreement to the “Financing” (other than in Section 5.6) shall include any financing that Parent, Merger Sub and/or other Subsidiaries of Parent elects to obtain for the purpose of financing the transactions contemplated hereby or any transaction undertaken in connection herewith, whether or not pursuant to the Debt Commitment Letter5.14(a).
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Samples: Agreement and Plan of Merger (Weingarten Realty Investors /Tx/)
