Cooperation with Financing (a) Prior to the Closing, each of the Seller Parties shall use reasonable best efforts to provide, and shall cause the other Target Companies to use reasonable best efforts to provide, and shall use reasonable best efforts to cause its and their respective Representatives to provide, in each case at US Buyer’s sole cost and expense, such cooperation as may reasonably be requested by US Buyer that is customary and necessary in connection with arranging and obtaining the Financing contemplated by the Commitment Letter, including (in each case to the extent that the same is reasonably requested or is otherwise expressly required by the Commitment Letter):
(i) assisting in preparation for and participation in marketing efforts (including a reasonable number of meetings with prospective lenders on reasonable advance notice and during normal business hours, due diligence and drafting sessions, and not more than one presentation and session with rating agencies);
(ii) providing the Required Financial Information to US Buyer;
(iii) if the Closing has not occurred, on or prior to February 14, 2017, furnishing US Buyer and the Financing Sources on or before February 15, 2017, with the unaudited consolidated balance sheet, consolidated income statement and consolidated cash flow statement of the Business for the 12 months ended December 31, 2016;
(iv) furnishing US Buyer and the Financing Sources with all other financial and other pertinent information regarding the Business as is required by the Commitment Letter and reasonably requested by US Buyer; provided, that no such preparation of materials or information (including in relation to clause (a)(i) above) shall require the preparation by any Seller Party, Target Company or the Business of pro forma financial or other pro forma information not currently available as of the date of this Agreement;
(v) facilitating delivery at the Closing of customary evidence of property and liability insurance, including endorsements in favor of the Financing Sources;
(vi) executing and delivering such documents, instruments, certificates or information, as may be reasonably requested in connection with the Financing (including all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act) so long as any such documents, instruments certificates or information are requested by US Buyer at least ten Business Days prior to the Closing Date;
(vii) delivering such officer’s certificates as are customary in financings of such type (including a certificate of the chief financial officer of US Seller with respect to solvency matters in the form attached to the Commitment Letter) and as are, in the good faith determination of the Person(s) executing such certificates, accurate in all material respects, and agreeing to pledge, grant security interests in, and otherwise grant Liens on, the Assets pursuant to such agreements, documents, instruments and certificates as may be reasonably requested (including such agreements, documents or certificates that facilitate the creation, perfection or enforcement of Liens securing the Financing (including original copies of all certificated securities (with transfer powers executed in blank)) as may be reasonably requested by US Buyer, and executing and delivering any pledge and security documents and otherwise facilitating the pledging of collateral); provided that no obligation of the Seller Parties, the Target Companies or any of their Subsidiaries under any such agreement or other financing document shall be effective until the Closing;
(viii) taking all corporate actions reasonably necessary to permit the consummation of the Financing; and
(ix) executing and delivering definitive agreements (the “Definitive Financing Agreements”) with respect to the Financing, subject to the occurrence of the Closing. Notwithstanding the foregoing: (1) US Buyer shall ensure that such requested cooperation does not unreasonably interfere with the Business (it being understood and agreed that neither any Seller nor any Target Company shall be required to take any action that unreasonably interferes with the Business); (2) neither any Seller nor any Target Company nor any of their respective Representatives, shall, in connection with the Financing: (A) be required to take any action that would result in a violation of applicable Law or breach of any Contract or subject it to actual or potential Liability; (B) have any Liability under any Definitive Financing Agreement or any related document or other agreement or document related to the Financing, other than any such Liability of any Target Company following the Closing; (C) be required to incur any other Liability in connection with the Financing, other than any other Liability incurred by any Target Company following the Closing; (D) be required to disclose or provide any information the disclosure of which, in the reasonable judgment of any Seller or any Target Company supported by outside legal counsel, is restricted by Contract, applicable Law or Order, is subject to attorney-client privilege, or would result in the disclosure of any trade secrets of third parties or violate any obligation of any Seller or any Target Company with respect to confidentiality; (E) be required to enter into or perform under any agreement with respect to the Financing that is not contingent upon the Closing or that would be effective prior to or simultaneous with the Closing, or (F) be required to waive or amend any terms of this Agreement or agree to pay any fees or reimburse any expenses prior to the Closing for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of any Buyer.
(b) US Buyer shall, promptly upon request by the Sellers’ Representative, reimburse Sellers and the Target Companies and/or their respective Representatives for all reasonable and documented out-of-pocket fees, costs and expenses, including all reasonable and documented out-of-pocket fees and expenses of outside counsel and other advisors, incurred by any Seller, any Target Company or such Representative in connection with the cooperation contemplated by Section 7.18(a). US Buyer shall indemnify and hold harmless Sellers, the Target Companies and their respective Representatives (collectively, the “Financing Indemnitees”) against any and all Losses (including advancing attorneys’ fees and expenses in advance of the final disposition of any Proceeding) directly or indirectly suffered or incurred by the Financing Indemnitees in connection with the Financing, including any information provided in connection therewith or the cooperation by any Seller or any Target Company with respect thereto, in each case, other than to the extent arising out of any Seller’s, any Target Company’s or any of their respective Representative’s gross negligence, bad faith or willful misconduct. This Section 7.18(b) shall survive the consummation of the transactions contemplated by this Agreement and the Closing and any termination of this Agreement, and is intended to benefit, and may be enforced by, the Financing Indemnitees and their respective heirs, executors, estates, personal representatives, successors and assigns, and shall be binding on all successors and permitted assigns of Buyers.
(c) Each Seller Party hereby consents, and agrees to cause the other Target Companies to consent to, to the use of its and their logos solely in connection with the Financing upon prior notice to the Sellers’ Representative; provided, however, that such logos shall be used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect any Seller Party or any other Target Company.
(d) Each Buyer acknowledges and agrees that, other than the obligations to cooperate expressly set forth in this Section 7.18, no Seller or any Target Company has any responsibility or liability in relation to any financing that any Buyer may seek or obtain in connection with the transactions contemplated by this Agreement.
Financing Cooperation (a) Until the earlier of the Completion and the valid termination of this Agreement pursuant to and in accordance with Article 9, Allergan shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, and shall use its reasonable best efforts to cause its and their respective officers, employees and advisors and other Representatives, including legal and accounting advisors, to use their reasonable best efforts, to provide to AbbVie and its Subsidiaries such assistance as may be reasonably requested by AbbVie in writing that is customary in connection with the arranging, obtaining and syndication of the Financing, including using reasonable best efforts with respect to:
(i) participating in and assisting with the due diligence, syndication or other marketing of the Financing, including using reasonable best efforts with respect to (A) the participation by members of management of Allergan with appropriate seniority in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, at times and at locations reasonably acceptable to Allergan and upon reasonable notice, (B) assisting with AbbVie’s preparation of customary materials for registration statements, offering documents, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents required in connection with the Financing (collectively, “Marketing Material”) and due diligence sessions related thereto, (C) delivering and consenting to the inclusion or incorporation in any SEC filing related to the Financing of the historical audited consolidated financial statements and unaudited consolidated interim financial statements of Allergan included or incorporated by reference into the Allergan SEC Documents (the “Historical Financial Statements”) and (D) delivering customary authorization letters, management representation letters, confirmations, and undertakings in connection with the Marketing Material (in each case, as applicable, subject to customary confidentiality provisions and disclaimers);
(ii) timely furnishing AbbVie and its Financing Sources with historical financial and other customary information (collectively, the “Financing Information”) with respect to Allergan and its Subsidiaries as is reasonably requested by AbbVie or its Financing Sources and customarily required in Marketing Material for Financings of the applicable type, including all Historical Financial Statements and other customary information with respect to Allergan and its Subsidiaries (A) of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act if the Financing were incurred by AbbVie and registered on Form S-3 under the Securities Act, including audit reports of annual financial statements to the extent so required (which audit reports shall not be subject to any “going concern” qualifications), or (B) reasonably necessary to permit AbbVie to prepare pro forma financial statements customary for Financings of the applicable type;
(iii) providing to AbbVie’s legal counsel and its independent auditors such customary documents and other customary information relating to Allergan and its Subsidiaries as may be reasonably requested in connection with their delivery of any customary negative assurance opinions and customary comfort letters relating to the Financing;
(iv) causing Allergan’s independent auditors to provide customary cooperation with the Financing;
(v) obtaining the consents of Allergan’s independent auditors to use their audit reports on the audited Historical Financial Statements of Allergan and to references to such independent auditors as experts in any Marketing Material and registration statements and related government filings filed or used in connection with the Financing;
(vi) obtaining Allergan’s independent auditors’ customary comfort letters and assistance with the accounting due diligence activities of the Financing Sources;
(vii) causing the Financing to benefit from the existing lender relationships of Allergan and its Subsidiaries;
(viii) providing documents reasonably requested by AbbVie or the Financing Sources relating to the repayment or refinancing of any indebtedness for borrowed money of Allergan or any of its Subsidiaries to be repaid or refinanced on the Completion Date and the release of related liens and/or guarantees (if any) effected thereby, including customary payoff letters and (to the extent required) evidence that notice of any such repayment has been timely delivered to the holders of such indebtedness, in each case in accordance with the terms of the definitive documents governing such indebtedness (provided that any such notice or payoff letter shall be expressly conditioned on the Completion);
(ix) procuring consents to the reasonable use of all of Allergan’s logos in connection with the Financing (provided that such logos are used solely in a manner that is not intended to and is not reasonably likely to harm or disparage Allergan or its Subsidiaries or the reputation or goodwill of Allergan or any of its Subsidiaries); and
(x) providing at least three (3) Business Days in advance of the Completion Date such documentation and other information about Allergan and its Subsidiaries as is reasonably requested in writing by AbbVie at least ten (10) Business Days in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT. Notwithstanding anything to the contrary in this Section 7.9(a) or Section 7.9(b) below, (A) none of Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action pursuant to this Section 7.9(a) or Section 7.9(b) below to (i) pay any commitment or other fee or incur any liability (other than third-party costs and expenses that are to be promptly reimbursed by AbbVie upon request by Allergan pursuant to Section 7.9(c)), (ii) execute or deliver any definitive financing documents or any other agreement, certificate, document or instrument, or agree to any change to or modification of any existing agreement, certificate, document or instrument, in each case that would be effective prior to the Completion Date or would be effective if the Completion does not occur (except (x) to the extent required by Section 7.9(b), applicable Allergan Supplemental Indentures, (y) customary officers’ certificates relating to the execution thereof that would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered and (z) the authorization letter and management representation letters delivered pursuant to the clause (i)(D) above), (iii) provide access to or disclose information that Allergan or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of Allergan or any of its Subsidiaries (provided that Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause any such information to be disclosed in a manner that would not result in the loss of any such privilege), (iv) deliver or cause its Representatives to deliver any legal opinion or negative assurance letter (except, in connection with the entry into an Allergan Supplemental Indenture required by Section 7.9(b), Allergan shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause counsel to Allergan or its Subsidiaries, as applicable, to deliver a customary opinion of counsel to the trustee under the applicable Indenture that the Allergan Supplemental Indenture amends if such trustee requires an opinion of counsel to Allergan in connection therewith (provided that such opinions would not conflict with applicable Law and would be accurate in light of the facts and circumstances at the time delivered)), (v) be an issuer or other obligor with respect to the Financing prior to the Completion, (vi) commence any Allergan Note Offers and Consent Solicitations or (vii) prepare any pro forma financial information or projections, (B) none of the Allergan Board, officers of Allergan, or directors and officers of the Subsidiaries of Allergan shall be required to adopt resolutions or consents approving the agreements, documents or instruments pursuant to which the Financing is obtained or any Allergan Note Offers and Consent Solicitations is consummated (except the execution and delivery of any applicable Allergan Supplemental Indentures), and (C) neither Allergan nor any of its Subsidiaries shall be required to take or permit the taking of any action that would (i) interfere unreasonably with the business or operations of Allergan or its Subsidiaries, (ii) cause any representation or warranty in this Agreement to be breached by Allergan or any of its Subsidiaries (unless waived by AbbVie), (iii) cause any director, officer or employee or shareholder of Allergan or any of its Subsidiaries to incur any personal liability or (iv) result in a material violation or breach of, or a default under, any material Contract to which Allergan or any of its Subsidiaries is a party, the Organizational Documents of Allergan or its Subsidiaries or any applicable Law. AbbVie shall cause all non-public or other confidential information provided by or on behalf of Allergan or any of its Subsidiaries or Representatives pursuant to this Section 7.9 to be kept confidential in accordance with the Confidentiality Agreement; provided, that Allergan acknowledges and agrees that the confidentiality undertakings that will be obtained in connection with syndication of the Financing will be in a form customary for use in the syndication of acquisition-related debt during a takeover offer period in compliance with the requirements of the Panel and the Takeover Rules.
Further Assurances; Post-Closing Cooperation (a) Subject to the terms and conditions of this Agreement, at any time or from time to time after the Closing, at Purchaser's request and without further consideration, the Company shall execute and deliver to Purchaser such other instruments of sale, transfer, conveyance, assignment and confirmation, provide such materials and information and take such other actions as Purchaser may reasonably deem necessary or desirable in order more effectively to transfer, convey and assign to Purchaser, and to confirm Purchaser's title to, all of the Assets (including, without limitation, the delivery to Purchaser of fully executed Uniform Commercial Code amendment or termination statements relating to the Assets as Purchaser shall request), and, to the full extent permitted by Law, to put Purchaser in actual possession and operating control of the Business and the Assets and to assist Purchaser in exercising all rights with respect thereto, and otherwise to cause the Company to fulfill its obligations under this Agreement.
(b) Following the Closing, the Company and Purchaser will afford the other party, its counsel and its accountants, during normal business hours, reasonable access to the books, records and other data relating to the Business in its possession with respect to periods prior to the Closing and the right to make copies and extracts therefrom, to the extent that such access may be reasonably required by the requesting party in connection with (i) the preparation of Tax Returns, (ii) the determination or enforcement of rights and obligations under this Agreement, (iii) compliance with the requirements of any Governmental or Regulatory Authority including without limitation the Commission, (iv) the determination or enforcement of the rights and obligations of any party to this Agreement and (v) in connection with any actual or threatened Action or Proceeding. Further, the Company and Purchaser agree for a period extending six (6) years after the Closing Date not to destroy or otherwise dispose of any such books, records and other data unless such party shall first offer in writing to surrender such books, records and other data to the other party and such other party shall not agree in writing to take possession thereof during the ten (10) day period after such offer is made.
(c) If, in order properly to prepare its Tax Returns, other documents or reports required to be filed with Governmental or Regulatory Authorities or its financial statements or to fulfill its obligations hereunder, it is necessary that the Company or Purchaser be furnished with additional information, documents or records relating to the Business not referred to in paragraph (b) above, and such information, documents or records are in the possession or control of the other party, such other party shall use its commercially reasonable efforts to furnish or make available such information, documents or records (or copies thereof) at the recipient's request, cost and expense.
(d) Notwithstanding anything to the contrary contained in this Section, if the Company and Purchaser are in an adversarial relationship in litigation or arbitration, the furnishing of information, documents or records in accordance with paragraphs (b) and (c) of this Section shall be subject to applicable rules relating to discovery.
Industrial cooperation 1. The Parties agree that industrial cooperation shall promote the modernisation and restructuring of Andean industry and individual sectors, as well as industrial cooperation between economic operators, with the objective of strengthening the private sector under conditions that ensure that the environment is protected.
2. Industrial cooperation initiatives shall reflect the priorities determined by both Parties. They shall take into account the regional aspects of industrial development, promoting trans-national partnerships where relevant. Initiatives shall seek in particular to establish a suitable framework for improving management know-how and promoting transparency as regards markets and conditions for business undertakings.
Continuing Cooperation Following the Termination Date, Executive agrees to cooperate with all reasonable requests for information made by or on behalf of Company with respect to the operations, practices and policies of the Company. In connection with any such requests, the Company shall reimburse Executive for all out-of-pocket expenses reasonably and necessarily incurred in responding to such request(s).