Cooperation with Financing. Prior to the Closing, the Company shall, and shall cause each of its Subsidiaries to, use reasonable best efforts to cooperate (and cause its representatives to cooperate) with Acquiror in connection with the arrangement of customary senior debt and high-yield debt financings to finance the transactions contemplated hereby (the “Debt Financing”), as may be reasonably requested by Acquiror (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries and provided that such requested cooperation is of the type customarily provided in connection with senior debt and high-yield debt acquisition financings), including (i) participation at reasonable times in a reasonable number of meetings, drafting sessions, presentations, road shows, and rating agency and due diligence sessions, (ii) using reasonable best efforts to furnish Acquiror and its financing sources with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Acquiror, including financial statements and projections, pro forma financial information, financial data, audit reports, comfort letters and similar information and materials, and other information of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act for a registered public offering of non-convertible debt securities of the Company, (iii) reasonably assisting Acquiror and its financing sources in the preparation of (A) offering documents, tender and solicitation documents (if required), private placement memoranda, bank information memoranda, high-yield offering prospectuses or memoranda and similar documents for any portion of the Debt Financing and (B) materials for rating agency presentations, (iv) reasonably cooperating with the marketing efforts of Acquiror and its financing sources for any portion of the Debt Financing, (v) reasonably cooperating with Acquiror’s legal counsel in connection with any legal opinions that such legal counsel may be required to deliver in connection with the Debt Financing, (vi) using commercially reasonable efforts to assist Acquiror in obtaining surveys, appraisals, legal opinions, title insurance, consents, landlord waivers and estoppels, non-disturbance agreements and other documentation and items relating to real estate collateral under the Debt Financing as reasonably requested by Acquiror, (vii) using reasonable best efforts to execute any pledge and security documents, other definitive financing documents, or other certificates (including a certificate of the chief financial officer of the Company with respect to solvency of the Company and its Subsidiaries on a consolidated basis to the extent required in connection with the Debt Financing), legal opinions (or back-up therefore) or documents, as may be reasonably requested by Acquiror (including consents of accountants for use of their reports in any materials relating to the Debt Financing) and otherwise facilitating the pledging of collateral under the Debt Financing, (viii) using reasonable best efforts to take all actions reasonably necessary to (x) permit the prospective financing sources involved in the Debt Financing to evaluate the Company and its and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (y) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, provided that such accounts, agreements and arrangements shall not become active or take effect until the Effective Time, (ix) using reasonable best efforts to provide Acquiror and relevant financing sources with all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations (including without limitation the PATRIOT ACT), and (x) using reasonable best efforts to provide supporting data and information as is reasonably required to enable Acquiror to prepare any schedule describing the material qualitative and quantitative differences between the Company’s financial statements prepared in accordance with GAAP and the Company’s financial statements prepared in accordance with International Financial Reporting Standards in connection with the Debt Financing; provided, in each case, that (A) none of the Company or any of its Subsidiaries shall be required to incur any liability in connection with the Debt Financing prior to the Effective Time, (B) the pre-Closing Board of Directors of the Company and the directors, managers and general partners of the Company Subsidiaries shall not be required to adopt resolutions approving (x) the agreements, documents and instruments pursuant to which the Debt Financing is obtained, or (y) any other action to be taken to effect the Debt Financing and (C) no obligation of the Company or any of its Subsidiaries under any certificate, document or instrument shall be effective until the Effective Time and none of the Company or any of its Subsidiaries shall be required to take any action under any certificate, document or instrument that is not contingent upon the Closing (including the entry into any agreement that is effective before the Effective Time) or that would be effective prior to the Effective Time, provided, further, that the Company shall cooperate with Acquiror, if requested by Acquiror, to appoint Acquiror’s designees to the Board of Directors or similar governing bodies of the Subsidiaries of the Company, as of the Closing Date, for the purpose of taking corporate action related to the Debt Financing as of the Closing. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided that such logos shall be used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect the Company or any of its Subsidiaries. Acquiror and Merger Sub shall jointly and severally indemnify, defend and hold harmless the Company, its Subsidiaries and the pre-Closing directors and officers of the Company and its Subsidiaries from and against any liability or obligation to providers of the Debt Financing in connection with the Debt Financing (other than to the extent such losses arise from the willful misconduct of or intentional breach of this Agreement by the Company, any of its Subsidiaries or their respective officers, directors, advisors and representatives and any information utilized in connection therewith, other than historical information relating to the Company or its Subsidiaries provided by the Company in writing specifically for use in the Debt Financing offering documents.). Acquiror shall promptly upon the Company’s written request reimburse the Company for all out-of-pocket costs and expenses (including fees and disbursements of counsel) incurred by the Company or its Subsidiaries in their compliance with this Section 6.6.
Appears in 1 contract
Sources: Merger Agreement (ASC Holdco, Inc.)
Cooperation with Financing. (a) Prior to the ClosingClosing Date, without in any way limiting Section 5.1, Seller, the Company Selling Subsidiaries and the Conveyed Entities shall, and shall cause each of its Subsidiaries request their respective Representatives to, use commercially reasonable best efforts to cooperate (and cause its representatives to cooperate) with Acquiror Purchasers in connection with the arrangement and consummation of customary senior any debt and high-yield debt financings to finance the transactions financing contemplated hereby by Purchasers or their Affiliates (or any permitted replacement, amended, modified or alternative financing, collectively, the “Debt Financing”), as may be reasonably requested by Acquiror (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries and provided that such requested cooperation is of the type customarily provided in connection with senior debt and high-yield debt acquisition financings), including using commercially reasonable efforts to (i) participation at reasonable times participate in a reasonable number of meetings, drafting sessions, presentations, road shows, and rating agency meetings and due diligence sessionssessions on reasonable advance notice and at reasonable locations, in each case, in connection with the Financing, including using commercially reasonable efforts to coordinate direct contact between senior management and the independent auditors of Seller, the Selling Subsidiaries and the Conveyed Entities on the one hand, and the Financing Sources, on the other hand, (ii) using reasonable best efforts cooperate with Purchasers and their Representatives to furnish Acquiror prepare (A) audited consolidated balance sheets and its financing sources related statements of net earnings (loss), comprehensive earnings (loss), changes in shareholders’ equity and cash flows of the Conveyed Entities and the Business for the years ending December 31, 2015 and 2016 in accordance with (or including a reconciliation to) U.S. generally accepted accounting principles applied on a consistent basis throughout the periods covered thereby, as well as any other financial information reasonably requested by Purchasers’ independent registered public accountants in connection with any reviews under the standards of the Public Company Accounting Oversight Board, (B) all information regarding the Conveyed Entities and the Business reasonably required for Purchasers to prepare pro forma and other financial information customarily included in a registered public offering of debt securities and (C) all other historical financial and other pertinent historical information regarding the Company Conveyed Entities and its Subsidiaries the Business as may be reasonably necessary and requested in writing by AcquirorPurchasers, including (x) all historical financial statements and projections, pro forma historical financial information, financial data, audit reports, comfort letters and similar information and materials, and other information data of the type that would reasonably determined by Purchasers to be required by Regulation S-X and Regulation S-K under the Securities Act for a registered public offering offerings of non-convertible debt securities of securities, including interim financial statements and (y) all historical financial statements and historical financial and other data as is necessary in order to receive customary “comfort” letters and “negative assurance” with respect to the Companyfinancial information referred to in the foregoing clauses (A) and (B), (iii) reasonably assisting Acquiror and its financing sources in the preparation of (A) offering documents, tender and solicitation documents (if required), private placement memoranda, bank information memoranda, high-yield offering prospectuses or memoranda and similar documents for any portion of the Debt Financing and (B) materials for rating agency presentations, (iv) reasonably cooperating with the marketing efforts of Acquiror and its financing sources for any portion of the Debt Financing, (v) reasonably cooperating with Acquiror’s legal counsel in connection promptly furnish Purchasers with any legal opinions that such legal counsel may be required to deliver in connection with the Debt Financing, (vi) using commercially reasonable efforts to assist Acquiror in obtaining surveys, appraisals, legal opinions, title insurance, consents, landlord waivers and estoppels, non-disturbance agreements and other documentation and items relating to real estate collateral under the Debt information which any Financing as reasonably Source has requested by Acquiror, (vii) using reasonable best efforts to execute any pledge and security documents, other definitive financing documents, or other certificates (including a certificate of the chief financial officer of the Company with respect to solvency of the Company and its Subsidiaries on a consolidated basis to the extent required in connection with the Debt Financing), legal opinions (or back-up therefore) or documents, as may be reasonably requested by Acquiror (including consents of accountants for use of their reports in any materials relating to the Debt Financing) and otherwise facilitating the pledging of collateral under the Debt Financing, (viii) using reasonable best efforts to take all actions reasonably necessary to (x) permit the prospective financing sources involved in the Debt Financing to evaluate the Company and its and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (y) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, provided that such accounts, agreements and arrangements shall not become active or take effect until the Effective Time, (ix) using reasonable best efforts to provide Acquiror and relevant financing sources with all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations regulations, including USA PATRIOT Act at least five (including without limitation 5) Business Days prior to the PATRIOT ACT)Closing Date; provided such request is made at least ten (10) Business Days prior to the Closing Date, (iv) assist with the preparation of materials for rating agency presentations, bank information memoranda and (x) using reasonable best efforts to provide supporting data and information as is reasonably similar documents required to enable Acquiror to prepare any schedule describing the material qualitative and quantitative differences between the Company’s financial statements prepared in accordance with GAAP and the Company’s financial statements prepared in accordance with International Financial Reporting Standards in connection with the Debt Financing; provided, in each case, that (Av) none reasonably cooperate with the marketing efforts for any of the Company or any Financing, (vi) to the extent contemplated by the executed debt commitment letter in effect as of its Subsidiaries shall be required to incur any liability the date of this Agreement (the “Debt Commitment Letter”), provide customary authorization letters in connection with the Debt Financing prior distribution of information to the Effective Timeprospective lenders or investors, (Bvii) the pre-Closing Board of Directors of the Company and the directors, managers and general partners of the Company Subsidiaries shall not be reasonably cooperate with Purchasers’ legal counsel in connection with any legal opinions that such legal counsel are required to adopt resolutions approving (x) the agreements, documents and instruments pursuant to which the Debt Financing is obtained, or (y) any other action to be taken to effect the Debt Financing and (C) no obligation of the Company or any of its Subsidiaries under any certificate, document or instrument shall be effective until the Effective Time and none of the Company or any of its Subsidiaries shall be required to take any action under any certificate, document or instrument that is not contingent upon the Closing (including the entry into any agreement that is effective before the Effective Time) or that would be effective prior to the Effective Time, provided, further, that the Company shall cooperate with Acquiror, if requested by Acquiror, to appoint Acquiror’s designees to the Board of Directors or similar governing bodies of the Subsidiaries of the Company, as of the Closing Date, for the purpose of taking corporate action related to the Debt Financing as of the Closing. The Company hereby consents to the use of its and its Subsidiaries’ logos deliver in connection with the Debt Financing; provided that such logos shall be used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect the Company or any of its Subsidiaries. Acquiror and Merger Sub shall jointly and severally indemnify, defend and hold harmless the Company, its Subsidiaries and the pre-Closing directors and officers of the Company and its Subsidiaries from and against any liability or obligation to providers of the Debt Financing in connection with the Debt Financing (other than to the extent such losses arise from the willful misconduct of or intentional breach of this Agreement by the Company, any of its Subsidiaries or their respective officers, directors, advisors and representatives and any information utilized in connection therewith, other than historical information relating to the Company or its Subsidiaries provided by the Company in writing specifically for use in the Debt Financing offering documents.). Acquiror shall promptly upon the Company’s written request reimburse the Company for all out-of-pocket costs and expenses (including fees and disbursements of counsel) incurred by the Company or its Subsidiaries in their compliance with this Section 6.6.and
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Commercial Metals Co)
Cooperation with Financing. Prior to the Closing, the Company shall, and shall cause each of its Subsidiaries to use commercially reasonable efforts to, use reasonable best efforts at Parent’s sole expense, cooperate as reasonably requested by Parent to cooperate assist Parent (a) in causing the conditions in the Bridge Credit Agreement to be satisfied, (b) in completing any Capital Markets Financing on terms and cause its representatives conditions satisfactory to cooperateParent and (c) with Acquiror as otherwise necessary in connection with the arrangement Bridge Financing, any Capital Markets Financing and the repayment and/or defeasance or satisfaction and discharge of customary senior debt and high-yield debt financings to finance the transactions contemplated hereby (the “Debt Financing”), as may be reasonably requested by Acquiror (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries and provided that such requested cooperation is of the type customarily provided in connection with senior debt and high-yield debt acquisition financings)existing Indebtedness for Borrowed Money, including (i) participation at using commercially reasonable times in a reasonable number of meetings, drafting sessions, presentations, road shows, and rating agency and due diligence sessions, (ii) using reasonable best efforts to furnish Acquiror Parent and its financing sources with financial and other pertinent information regarding the Company and its Subsidiaries as may be REIT Entities reasonably requested by AcquirorParent, including financial statements and projections, pro forma financial information, financial data, audit reports, comfort letters and similar information and materials(ii) participating in, and other information causing its senior executive officers to participate in, a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies at reasonable times in connection with the type that would be required by Regulation S-X and Regulation S-K under the Securities Act for a registered public offering of non-convertible debt securities of the CompanyBridge Financing or any Capital Markets Financing, (iii) reasonably assisting Acquiror and its financing sources Parent in the preparation of (A) customary offering documents, tender and solicitation documents (if required), private placement memoranda, bank information memoranda, high-yield offering prospectuses rating agency presentations and lender presentations relating to the Bridge Financing or memoranda and similar documents for any portion of the Debt Capital Markets Financing and (B) materials for rating agency presentationsbusiness projections and pro forma financial statements reasonably necessary in connection with the Bridge Financing or any Capital Markets Financing as reasonably requested by Parent, (iv) reasonably cooperating with the marketing efforts of Acquiror and its financing sources Parent for all or any portion of the Debt Bridge Financing or any Capital Markets Financing, (v) reasonably cooperating with AcquirorParent’s legal counsel in connection with any legal opinions that such legal counsel may be required to deliver in connection with the Debt Bridge Financing or any Capital Markets Financing, (vi) using commercially reasonable efforts to assist Acquiror assisting Parent in obtaining surveys, appraisals, legal opinions, title insurance, consents, landlord waivers and estoppels, non-disturbance agreements and invasive environmental assessments, zoning reports, or any other documentation and items relating to real estate collateral under the Debt Financing diligence as reasonably requested by AcquirorParent, (vii) requesting, and using commercially reasonable best efforts, at Parent’s sole cost and expense, to obtain, estoppel certificates from landlords and other third parties, including, without limitation, the landlords under the Ground Leases, as reasonably requested by Parent, (viii) assisting Parent in connection with Parent’s structuring efforts to execute or otherwise assisting Parent in complying with any pledge and security documents, other definitive financing documents, or other certificates (including a certificate reasonable structuring requests made of the chief financial officer of the Company with respect to solvency of the Company and its Subsidiaries on a consolidated basis to the extent required Parent in connection with the Debt Financing), legal opinions (Bridge Financing or back-up therefore) or documents, as may be reasonably requested by Acquiror (including consents of accountants for use of their reports in any materials relating to the Debt Financing) and otherwise facilitating the pledging of collateral under the Debt Capital Markets Financing, (viiiix) using reasonable best efforts requesting its independent accountants to take all actions reasonably provide assistance and cooperation in the Bridge Financing or any Capital Markets Financing including (A) participating in accounting due diligence, (B) providing necessary to consents for their audit reports, and (C) providing customary “comfort letters” and (x) permit the prospective financing sources involved in the Debt Financing to evaluate the Company and its and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (y) establish bank and other accounts and blocked account agreements and lock box arrangements cooperating with Parent’s efforts in connection with the foregoing, provided that such accounts, agreements repayment or defeasance of any Indebtedness for Borrowed Money of PropCo and arrangements shall not become active or take effect until the Effective Time, (ix) using reasonable best efforts to provide Acquiror and relevant financing sources with all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations (including without limitation the PATRIOT ACT), and (x) using reasonable best efforts to provide supporting data and information as is reasonably required to enable Acquiror to prepare any schedule describing the material qualitative and quantitative differences between the Company’s financial statements prepared in accordance with GAAP and the Company’s financial statements prepared in accordance with International Financial Reporting Standards in connection with the Debt Financingits Subsidiaries; provided, however, in each case, that (Aa) none of the Company or any of its Subsidiaries shall be required to incur any liability in connection with the Debt Bridge Financing prior to or the Effective TimeCapital Markets Financing other than Liabilities of the REIT Entities arising after the Closing, (Bb) the pre-Closing Board of Directors of the Company and the directors, members, managers and general partners of the Company Company’s Subsidiaries (except for the post-Closing Boards of Directors and members of the REIT Entities) shall not be required to adopt resolutions approving (x) the agreements, documents and instruments pursuant to which the Debt Bridge Financing is obtained, (c) neither the Company nor any of its Subsidiaries shall be required to execute any definitive financing documents, including any credit or other agreements, pledge or security documents, or other certificates, legal opinions or documents in connection with the Bridge Financing or the Capital Markets Financing (y) any other action to be taken to effect than the Debt Financing execution of such documents by the REIT Entities following Closing), and (Cd) no obligation nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of the Company or any of its Subsidiaries under any certificate, document or instrument shall be effective until the Effective Time and none Subsidiaries. None of the Company or any of its Subsidiaries shall be required to take bear any action under cost or expense or to pay any certificate, document commitment or instrument that is not contingent upon the Closing (including the entry into other similar fee or make any agreement that is effective before the Effective Time) or that would be effective prior to the Effective Time, provided, further, that the Company shall cooperate with Acquiror, if requested by Acquiror, to appoint Acquiror’s designees to the Board of Directors or similar governing bodies of the Subsidiaries of the Company, as of the Closing Date, for the purpose of taking corporate action related to the Debt Financing as of the Closing. The Company hereby consents to the use of its and its Subsidiaries’ logos other payment in connection with the Debt Financing; provided that such logos shall be used solely in a manner that is not intended Bridge Financing or reasonably likely to harm, disparage or otherwise adversely affect the Company Capital Markets Financing or any of its Subsidiariesthe foregoing other than fees payable by the REIT Entities following the Closing. Acquiror and Merger Sub Parent shall jointly and severally indemnify, defend indemnify and hold harmless the Company, its Subsidiaries Subsidiaries, its Affiliates and the pre-Closing directors their respective employees, officers, directors, agents and officers of the Company and its Subsidiaries representatives from and against any liability and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or obligation to providers of the Debt Financing incurred by them in connection with the Debt arrangement of the Bridge Financing and the Capital Markets Financing (other than to the extent such losses arise from the willful misconduct of including without limitation any action taken in accordance with Section 6.10 or intentional breach of this Agreement by the Company, any of its Subsidiaries or their respective officers, directors, advisors and representatives Section 6.11) and any information utilized in connection therewith; provided, other than historical information relating however, that the foregoing indemnity shall not apply with respect to any liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties resulting from a willful or intentional breach of any representation, warranty, covenant or agreement of the Company or any of its Subsidiaries provided under this Agreement or any Ancillary Agreement. Parent shall, promptly upon request by the Company in writing specifically for use in the Debt Financing offering documents.). Acquiror shall promptly upon the Company’s written request , reimburse the Company for all reasonable out-of-pocket costs and expenses (including fees and disbursements of counsel) incurred by the Company or its Subsidiaries in their compliance connection with this Section 6.66.11.
Appears in 1 contract
Sources: Purchase Agreement (Hcp, Inc.)
Cooperation with Financing. Prior to the Closing, the Company Sellers shall, and shall cause the Target Companies and each of its Subsidiaries the respective Representatives of Sellers and the Target Companies to, use their commercially reasonable best efforts to cooperate (and cause its representatives to cooperate) with Acquiror in connection with the arrangement of customary senior debt and high-yield debt financings to finance the Debt Financing or any Alternate Financing for the transactions contemplated hereby (the “Debt Financing”), by this Agreement as may be reasonably requested by Acquiror Buyer including, but not limited to:
(provided that such requested cooperation does not unreasonably interfere with a) as promptly as reasonably practicable following the ongoing operations request of the Company and its Subsidiaries and provided that such requested cooperation is of the type customarily provided in connection with senior debt and high-yield debt acquisition financings)Buyers, including deliver to Buyers (i) participation at reasonable times the financial information with respect to the Target Companies specified in a reasonable number of meetings, drafting sessions, presentations, road shows, and rating agency and due diligence sessions, the Commitment Letter; (ii) using reasonable best efforts to furnish Acquiror and its financing sources with all financial and related information relating to the Target Companies that is necessary to permit Buyers to prepare the information described in the Commitment Letter; and (iii) such other financial statements or other pertinent and customary information regarding the Company and its Subsidiaries Target Companies as may be reasonably requested by Acquiror, including Buyers or the Lenders to the extent that such financial statements and projections, pro forma financial information, financial data, audit reports, comfort letters and similar information and materials, and or other information is of the type that would be and form required by Regulation S-X and Regulation S-K under the Securities Act for or customarily included in a registered public offering of non-convertible debt securities confidential information memorandum or bank presentation in respect of the Companyfinancing contemplated by the Commitment Letter;
(b) participate in and cause the Purchased Companies’ management teams, with appropriate seniority and expertise, including senior officers, to participate in a reasonable and customary number of lender presentations, conference calls, drafting sessions, due diligence sessions, in connection with the Debt Financing on reasonable advance notice and at mutually agreeable times and places;
(iiic) reasonably assisting Acquiror and its financing sources in assist with the preparation of (A) offering documents, tender appropriate and solicitation documents (if required), private placement memorandacustomary materials for lender presentations, bank information memoranda, high-yield offering prospectuses and other marketing documents reasonably requested or memoranda and similar documents for any portion of the Debt Financing and (B) materials for rating agency presentations, (iv) reasonably cooperating with the marketing efforts of Acquiror and its financing sources for any portion of the Debt Financing, (v) reasonably cooperating with Acquiror’s legal counsel in connection with any legal opinions that such legal counsel may be required to deliver customarily provided in connection with the Debt Financing, ;
(vid) using commercially reasonable efforts to assist Acquiror in obtaining surveys, appraisals, legal opinions, title insurance, consents, landlord waivers execute and estoppels, non-disturbance agreements and other documentation and items relating to real estate collateral under deliver customary authorization letters for the Debt Financing as reasonably requested by Acquiror, (vii) using reasonable best efforts authorizing the distribution of information to execute any pledge and security documents, other definitive financing documents, or other certificates prospective lenders (including a certificate of the chief financial officer of the Company with respect to solvency of the Company customary 10b-5 and its Subsidiaries on a consolidated basis material non-public information representations);
(e) furnish no later than four (4) Business Days prior to the extent required in connection with the Debt Financing), legal opinions (or back-up therefore) or documents, as may be reasonably requested by Acquiror (including consents of accountants for use of their reports in any materials relating to the Debt Financing) and otherwise facilitating the pledging of collateral under the Debt Financing, (viii) using reasonable best efforts to take all actions reasonably necessary to (x) permit the prospective financing sources involved in the Debt Financing to evaluate the Company and its and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (y) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, provided that such accounts, agreements and arrangements shall not become active or take effect until the Effective Time, (ix) using reasonable best efforts to provide Acquiror and relevant financing sources with Closing all documentation and other information that is reasonably requested by Buyers that is required by regulatory authorities under in connection with applicable “know your customer” and anti-money laundering rules and regulations regulations, including the USA PATRIOT Act, relating to the Target Companies;
(including without limitation f) facilitate the PATRIOT ACT), pledging of collateral and (x) using reasonable best efforts to provide supporting data and information as is reasonably required to enable Acquiror to prepare any schedule describing the material qualitative and quantitative differences between the Company’s financial statements prepared in accordance with GAAP and the Company’s financial statements prepared in accordance with International Financial Reporting Standards in connection with the Debt Financing; provided, in each case, that (A) none granting of the Company or any of its Subsidiaries shall be required to incur any liability security interests in connection with the Debt Financing prior effective no earlier than, and subject to the Effective Timeoccurrence of, the Closing;
(Bg) cause the pre-taking of any corporate, limited liability company, or partnership actions, as applicable, by the Target Companies reasonably necessary to permit the completion of such Debt Financing, in each case effective no earlier than, and subject to the occurrence of, the Closing; and
(h) assist Buyers in obtaining customary payoff letters, lien terminations, and instruments of discharge to be delivered at Closing Board to allow for the payoff, discharge, and termination in full on the Closing Date of Directors any indebtedness for borrowed money, bonds, debenture notes, or other similar instruments of the Company and the directors, managers and general partners of the Company Subsidiaries shall not be required to adopt resolutions approving (x) the agreements, documents and instruments pursuant to which the Debt Financing is obtained, or (y) any other action to be taken to effect the Debt Financing and (C) no obligation of the Company or any of its Subsidiaries under any certificate, document or instrument shall be effective until the Effective Time and none of the Company or any of its Subsidiaries shall be required to take any action under any certificate, document or instrument that is not contingent upon the Closing (including the entry into any agreement that is effective before the Effective Time) or that would be effective prior to the Effective Time, provided, further, that the Company shall cooperate with Acquiror, if requested by Acquiror, to appoint Acquiror’s designees to the Board of Directors or similar governing bodies of the Subsidiaries of the Company, as of the Closing Date, for the purpose of taking corporate action related to the Debt Financing as of the Closing. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided that such logos shall be used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect the Company or any of its Subsidiaries. Acquiror and Merger Sub shall jointly and severally indemnify, defend and hold harmless the Company, its Subsidiaries and the pre-Closing directors and officers of the Company and its Subsidiaries from and against any liability or obligation to providers of the Debt Financing in connection with the Debt Financing (other than to the extent such losses arise from the willful misconduct of or intentional breach of this Agreement by the Company, any of its Subsidiaries or their respective officers, directors, advisors and representatives and any information utilized in connection therewith, other than historical information relating to the Company or its Subsidiaries provided by the Company in writing specifically for use in the Debt Financing offering documentsTarget Companies.). Acquiror shall promptly upon the Company’s written request reimburse the Company for all out-of-pocket costs and expenses (including fees and disbursements of counsel) incurred by the Company or its Subsidiaries in their compliance with this Section 6.6.
Appears in 1 contract
Cooperation with Financing. Prior to From and after the Closingdate hereof until the Closing Date, the Company shallwill use its reasonable best efforts to, and shall will use its reasonable best efforts to cause each of its Subsidiaries Representatives to, use in each case do the following:
(i) provide the Purchaser with such reasonable best efforts to cooperate (and cause its representatives to cooperate) with Acquiror in connection with the arrangement of customary senior debt and high-yield debt financings to finance the transactions contemplated hereby (the “Debt Financing”), cooperation as may be reasonably requested by Acquiror the Purchaser to assist the Purchaser in arranging the Financing;
(provided that such requested cooperation does not unreasonably interfere ii) participate (and cause senior management and Representatives, with appropriate seniority and expertise, of the Company to participate) in a reasonable number of meetings and presentations with actual or prospective lenders and capital market instrument purchasers, road shows and due diligence sessions, drafting sessions and sessions with rating agencies, and otherwise cooperate with the ongoing operations marketing and due diligence efforts for any of the Financing;
(iii) assist the Purchaser and the Financing Sources with the timely preparation of customary rating agency presentations, bank information memoranda, offering documentation, confidential information memoranda, lender presentations and similar documents required in connection with or proper for the Financing or customarily used to arrange transactions similar to the Financing by companies of a comparable size in a comparable industry as the Purchaser;
(iv) deliver notices of prepayment within the time periods required by the relevant agreements governing indebtedness and obtaining customary payoff letters, lien terminations and instruments of discharge to be delivered at the Closing but which shall not become effective until being paid in full, give any other necessary notices, to allow for the payoff, discharge and termination in full at the Closing of all indebtedness required to be repaid at the Closing and release of all liens and encumbrances in connection therewith; and cooperate in the replacement, backstop or cash collateralization of any outstanding letters of credit issued for the account of the Company or any of its Subsidiaries;
(v) subject to customary confidentiality provisions and disclaimers, provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors;
(vi) facilitate and assist in the preparation of definitive financing documents as may be reasonably requested by the Purchaser (including furnishing all information relating to the Company and its Subsidiaries and provided that such requested cooperation is of their respective businesses to be included in any schedules thereto, to the type customarily provided in connection with senior debt and high-yield debt acquisition financings), including (i) participation at reasonable times in a reasonable number of meetings, drafting sessions, presentations, road shows, and rating agency and due diligence sessions, (ii) using reasonable best efforts extent reasonably available to furnish Acquiror and its financing sources with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Acquiror, including financial statements and projections, pro forma financial information, financial data, audit reports, comfort letters and similar information and materials, and other information of the type that would be required by Regulation S-X and Regulation S-K under the Securities Act for a registered public offering of non-convertible debt securities of the Company, (iii) reasonably assisting Acquiror and its financing sources in the preparation of (A) offering documents, tender and solicitation documents (if required), private placement memoranda, bank information memoranda, high-yield offering prospectuses or memoranda and similar documents for any portion of the Debt Financing and (B) materials for rating agency presentations, (iv) reasonably cooperating with the marketing efforts of Acquiror and its financing sources for any portion of the Debt Financing, (v) reasonably cooperating with Acquiror’s legal counsel in connection with any legal opinions that such legal counsel may be required to deliver in connection with the Debt Financing, (vi) using commercially reasonable efforts to assist Acquiror in obtaining surveys, appraisals, legal opinions, title insurance, consents, landlord waivers and estoppels, non-disturbance agreements and other documentation and items relating to real estate collateral under the Debt Financing as reasonably requested by Acquiror, ;
(vii) using reasonable best efforts to execute deliver in respect of any pledge subsequent fiscal quarter ending after June 30, 2020 and security documents, other definitive financing documents, or other certificates (including a certificate of the chief financial officer of the Company with respect to solvency of the Company and its Subsidiaries on a consolidated basis at least 45 days prior to the extent required Closing Date, unaudited consolidated balance sheets and related statements of income and cash flows of Ellie Mae for such fiscal quarter, in connection each case prepared in accordance with the Debt Financing), legal opinions GAAP (or back-up therefore) or documents, as may be reasonably requested by Acquiror (including consents of accountants for use of their reports in any materials relating subject to the Debt Financing) absence of footnotes and otherwise facilitating year-end adjustments, in the pledging case of collateral under the Debt Financing, unaudited financial statements); and
(viii) using reasonable best efforts to take all actions reasonably necessary to promptly furnish (xa) permit the prospective financing sources involved in Purchaser and the Debt Financing to evaluate the Company and its and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (y) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, provided that such accounts, agreements and arrangements shall not become active or take effect until the Effective Time, (ix) using reasonable best efforts to provide Acquiror and relevant financing sources Sources with all documentation and other information required about the Company as is reasonably requested by regulatory authorities under the Purchaser or the Financing Sources relating to applicable “"know your customer” " and anti-money laundering rules and regulations regulations, including, without limitation, the USA PATRIOT Act, Title III of Pub. L. 107-56 (including without limitation the PATRIOT ACTsigned into law on October 26, 2001), and (xb) using reasonable best efforts to provide supporting data and information as is reasonably a certification regarding beneficial ownership required to enable Acquiror to prepare any schedule describing the material qualitative and quantitative differences between the Company’s financial statements prepared in accordance with GAAP and the Company’s financial statements prepared in accordance with International Financial Reporting Standards in connection with the Debt Financing; providedby 31 C.F.R. § 1010.230, in each case, that (A) none of the Company or any of its Subsidiaries shall be required to incur any liability in connection with the Debt Financing at least three Business Days prior to the Effective Time, (B) Closing Date to the pre-Closing Board of Directors of the Company and the directors, managers and general partners of the Company Subsidiaries shall not be required to adopt resolutions approving (x) the agreements, documents and instruments pursuant to which the Debt Financing is obtained, or (y) any other action to be taken to effect the Debt Financing and (C) no obligation of the Company or any of its Subsidiaries under any certificate, document or instrument shall be effective until the Effective Time and none of the Company or any of its Subsidiaries shall be required to take any action under any certificate, document or instrument that is not contingent upon the Closing (including the entry into any agreement that is effective before the Effective Time) or that would be effective extent requested in writing at least ten Business Days prior to the Effective Time, provided, further, that the Company shall cooperate with Acquiror, if requested by Acquiror, to appoint Acquiror’s designees to the Board of Directors or similar governing bodies of the Subsidiaries of the Company, as of the Closing Date, for the purpose of taking corporate action related to the Debt Financing as of the Closing. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided that such logos shall be used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect the Company or any of its Subsidiaries. Acquiror and Merger Sub shall jointly and severally indemnify, defend and hold harmless the Company, its Subsidiaries and the pre-Closing directors and officers of the Company and its Subsidiaries from and against any liability or obligation to providers of the Debt Financing in connection with the Debt Financing (other than to the extent such losses arise from the willful misconduct of or intentional breach of this Agreement by the Company, any of its Subsidiaries or their respective officers, directors, advisors and representatives and any information utilized in connection therewith, other than historical information relating to the Company or its Subsidiaries provided by the Company in writing specifically for use in the Debt Financing offering documents.). Acquiror shall promptly upon the Company’s written request reimburse the Company for all out-of-pocket costs and expenses (including fees and disbursements of counsel) incurred by the Company or its Subsidiaries in their compliance with this Section 6.6.
Appears in 1 contract
Sources: Stock Purchase Agreement (Intercontinental Exchange, Inc.)
Cooperation with Financing. Prior Contractor agrees to provide such assistance as is reasonably requested by Owner in connection with Owner’s efforts to secure financing for the ClosingFacility, which shall include, without limitation, providing technical assistance as Owner may request in addressing any Lender issues or concerns and meeting with the Company shallLenders and their representatives. In connection with the financing of the Project, Contractor agrees to (and shall cause each the Guarantor to) execute, acknowledge and deliver to Owner such documents and instruments and take such other commercially reasonable actions as are reasonably necessary to (a) accommodate any financing or refinancing of its Subsidiaries to, use the Project; and (b) satisfy the reasonable best efforts to cooperate (and cause its representatives to cooperate) with Acquiror requests of Owner’s Lenders or any prospective Lender in connection with such financing or refinancing; provided however, that such shall not materially impair or diminish Contractor’s rights or materially increase Contractor’s obligations under this Agreement. Subject to, in the arrangement case of customary senior debt financial information and high-yield debt financings other Confidential Information, terms of confidentiality reasonably acceptable to finance Contractor and the transactions contemplated hereby Lenders or prospective Lenders or prospective equity investors in the Project or the Independent Engineer, as applicable, Contractor agrees to provide such information and documentation as may be requested by the Lenders or prospective Lenders or prospective equity investors in the Project, and the Independent Engineer, including:
(the “Debt Financing”)a) Financial information, evidence of corporate existence, and evidence of incumbency of persons executing this Agreement;
(b) Opinions of counsel consistent with those set forth in Section 20.3(b)(iii)(y) and addressing such other matters as may be reasonably requested by Acquiror (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries and provided that such requested cooperation is of the type customarily provided in connection with senior debt and high-yield debt acquisition financings), including (i) participation at reasonable times in a reasonable number of meetings, drafting sessions, presentations, road shows, and rating agency and due diligence sessions, (ii) using reasonable best efforts to furnish Acquiror and its financing sources with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Acquiror, including financial statements and projections, pro forma financial information, financial data, audit reports, comfort letters and similar information and materials, and other information of the type that would be required by Regulation S-X the Lenders or a prospective Lender; and
(c) Any reasonable consents and Regulation S-K under the Securities Act for a registered public offering of non-convertible debt securities of the Companyagreements, (iii) reasonably assisting Acquiror and its financing sources in the preparation of (A) offering documents, tender and solicitation documents (if required), private placement memoranda, bank information memoranda, high-yield offering prospectuses or memoranda and similar documents for any portion of the Debt Financing and (B) materials for rating agency presentations, (iv) reasonably cooperating with the marketing efforts of Acquiror and its financing sources for any portion of the Debt Financing, (v) reasonably cooperating with Acquiror’s legal counsel in connection with any legal opinions that such legal counsel may be required to deliver in connection with the Debt Financing, (vi) using commercially reasonable efforts to assist Acquiror in obtaining surveys, appraisals, legal opinions, title insurance, consents, landlord waivers and estoppels, non-disturbance agreements and other documentation and items relating to real estate collateral under the Debt Financing as reasonably requested by Acquiror, (vii) using reasonable best efforts to execute any pledge and security documents, other definitive financing documentsestoppel certificates, or other certificates (including a certificate of the chief financial officer of the Company with respect to solvency of the Company and its Subsidiaries on a consolidated basis to the extent documents reasonably required in connection with the Debt Financing)financing or refinancing of the Project. If any financing party or prospective Lender, legal opinions (including a prospective equity investor, determines that an amendment or back-up therefore) or documents, as may be reasonably requested by Acquiror (including consents modification of accountants for use of their reports in any materials relating to the Debt Financing) and otherwise facilitating the pledging of collateral under the Debt Financing, (viii) using reasonable best efforts to take all actions reasonably necessary to (x) permit the prospective financing sources involved in the Debt Financing to evaluate the Company and its and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (y) establish bank and other accounts and blocked account agreements and lock box arrangements this Agreement is required in connection with or as a condition to the foregoingfinancing or any refinancing of the Project, provided that such accounts, agreements Owner and arrangements Contractor shall not become active or take effect until the Effective Time, (ix) using reasonable best efforts to provide Acquiror negotiate in good faith and relevant financing sources with all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations (including without limitation the PATRIOT ACT), and (x) using reasonable best efforts to provide supporting data and information as is reasonably required to enable Acquiror to prepare any schedule describing the material qualitative and quantitative differences between the Company’s financial statements prepared in accordance with GAAP and the Company’s financial statements prepared in accordance with International Financial Reporting Standards in connection consultation with the Debt Financing; providedfinancing party or prospective Lender, in each caseincluding a prospective equity investor, that (A) none the terms of the Company any such requested amendment or any of its Subsidiaries shall be required to incur any liability in connection with the Debt Financing prior modification, including an equitable adjustment to the Effective Time, (B) Contract Price and Milestone Schedule if the pre-Closing Board of Directors of the Company and the directors, managers and general partners of the Company Subsidiaries shall not be required to adopt resolutions approving (x) the agreements, documents and instruments pursuant to which the Debt Financing same is obtained, or (y) any other action to be taken to effect the Debt Financing and (C) no obligation of the Company or any of its Subsidiaries under any certificate, document or instrument shall be effective until the Effective Time and none of the Company or any of its Subsidiaries shall be required to take any action under any certificate, document or instrument that is not contingent upon the Closing (including the entry into any agreement that is effective before the Effective Time) or that would be effective prior to the Effective Time, provided, further, that the Company shall cooperate with Acquiror, if requested by Acquiror, to appoint Acquiror’s designees to the Board of Directors or similar governing bodies of the Subsidiaries of the Company, as of the Closing Date, for the purpose of taking corporate action related to the Debt Financing as of the Closing. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided that such logos shall be used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect the Company or any of its Subsidiaries. Acquiror and Merger Sub shall jointly and severally indemnify, defend and hold harmless the Company, its Subsidiaries and the pre-Closing directors and officers of the Company and its Subsidiaries from and against any liability or obligation to providers of the Debt Financing in connection with the Debt Financing (other than to the extent such losses arise from the willful misconduct of or intentional breach of this Agreement demonstrably impacted by the Company, any of its Subsidiaries requested amendment or their respective officers, directors, advisors and representatives and any information utilized in connection therewith, other than historical information relating to the Company or its Subsidiaries provided by the Company in writing specifically for use in the Debt Financing offering documentsmodification.). Acquiror shall promptly upon the Company’s written request reimburse the Company for all out-of-pocket costs and expenses (including fees and disbursements of counsel) incurred by the Company or its Subsidiaries in their compliance with this Section 6.6.
Appears in 1 contract