Financing Assistance. (a) The Company will, and will cause its Subsidiaries and its Representatives to, at the expense of Parent, use its and their reasonable best efforts to provide such cooperation as may be reasonably requested by Parent, to assist Parent in arranging, obtaining or syndicating the Debt Financing, the Alternative Financing or any debt or equity financing undertaken in any form in replacement of all or any portion of such Debt Financing or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality of the foregoing, upon the reasonable request by Parent, the Company will and will cause its Subsidiaries and its Representatives to use its and their reasonable best efforts to: (i) as promptly as reasonably practicable provide information (financial or otherwise) relating to the Company to the Financing Sources (including information to be used in the preparation of an information package regarding the business, operations, financial condition, financial projections and prospects of Parent and the Company customary for the completion of such financing) to the extent reasonably requested by Parent or the Financing Sources to prepare customary offering or information documents to be used for the completion of the Debt Financing, including participation in any drafting sessions; (ii) reasonably cooperate and assist with the due diligence, ratings agency process and marketing efforts of Parent, its Representatives and the Financing Sources, including participation by officers and other representatives, with appropriate seniority and expertise, in a reasonable number of investor meetings, presentations, sessions with ratings agencies, due diligence sessions and road shows, at times and at locations reasonably requested by Parent and upon reasonable advance notice; (iii) reasonably assist in preparing customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, lender presentations, financial statements, private placement memoranda, prospectuses, filings with the SEC and other similar documents, including delivery of and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or the Alternative Financing of (A) audited consolidated balance sheets and related audited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended at least 75 days prior to the Closing Date (and internal control reports and audit reports for such financial statements, which will not be subject to any “going concern” qualifications), (B) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, and (C) all other historical financial and other information regarding the Company reasonably necessary to permit Parent to prepare pro forma financial statements required or customary for the Debt Financing and a securities offering contemplated by the Debt Financing or the Alternative Financing; (iv) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources or as may be requested by the SEC in connection with the completion of the Debt Financing or Alternative Financing; (v) reasonably facilitate the pledge of collateral required under the Debt Commitment Letter to be delivered and become effective at the Closing as may be reasonably requested by Parent (it being acknowledged that no such pledge may become effective other than concurrently with the Closing Date and the termination of certain of the Company’s existing financing arrangements), and assisting Parent, the Financing Sources and their respective Representatives in obtaining customary payoff letters, Lien releases, instruments of termination or discharge (in each case only to the extent such Indebtedness is required to be repaid in full on the Closing Date or in respect of which a default or event of default would arise as a result of the consummation of the transactions contemplated hereunder) and in each case to be effective upon receipt in cash of the payoff amount; (vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with the Debt Financing or the Alternative Financing; (vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the financial statements of the Company provided pursuant to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentation, including by providing customary representation letters, and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including by participating in any accounting due diligence sessions; (viii) subject to customary confidentiality provisions, provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors; (ix) provide or cause to be provided any customary certificates or opinions as may reasonably be requested in connection with the Debt Financing and the Alternative Financing; and (x) provide all reasonably available information about the Company and its Subsidiaries to the extent required under applicable “know your customer” and anti-money laundering rules and regulations, including under the USA PATRIOT Act of 2001. (b) Notwithstanding Section 6.11(a), (i) neither the Company nor any of its Subsidiaries will be required to pay any commitment or other similar fee or incur, prior to the Closing, any other liability or obligation in connection with the Debt Financing, (ii) none of the Company, its Subsidiaries or their respective officers, directors, employees or advisors will be required to execute or enter into or perform any agreement (including any opinion, solvency certificate or other deliverable) with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Closing (other than authorization letters contemplated by Section 6.11(a)(vii)) and the boards of directors or other equivalent governing bodies of the Company, Parent, Merger Sub or the Surviving Corporation will not be required to enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources pursuant to the Debt Commitment Letter that are effective prior to the Closing, (iii) nothing herein will obligate the Company or any of its Subsidiaries to provide or cause to be provided any information or take or cause to be taken any action to the extent it would result in a violation of applicable Law or such Person’s respective organizational documents, loss of any legal privilege or a default, event of default, or acceleration under, or termination of any Contract in effect on the date of this Agreement, and (iv) nothing herein will obligate the Company or any of its Subsidiaries to take any action that would (x) unreasonably interfere with the ongoing operations of the Company or its Subsidiaries or (y) cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement. Parent will, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.11. (c) Parent will indemnify and hold harmless the Company and each of its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) suffered or incurred in connection with any financing or other securities offering of Parent or its Subsidiaries or any assistance or activities provided in connection therewith; provided that Parent will have no obligation to indemnify or hold harmless any such Person to the extent that any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are suffered or incurred as a result of the gross negligence, willful misconduct or fraud of the Company as determined by a court of competent jurisdiction in a final non-appealable verdict. (d) In no event will the receipt or availability of any funds or financing (including the Debt Financing contemplated by the Debt Commitment Letter) by or to Parent or any other financing transaction be a condition to any of the obligations of Parent hereunder.
Appears in 2 contracts
Sources: Merger Agreement (Gebr. Knauf Verwaltungsgesellschaft Kg), Agreement and Plan of Merger (Usg Corp)
Financing Assistance. (a) The Although the parties acknowledge and agree that obtaining financing is not a condition to Closing, prior to the Effective Time, the Company willand its Subsidiaries shall use commercially reasonable efforts to, and will shall use commercially reasonable efforts to cause its Subsidiaries their officers, employees representatives and its Representatives advisors, including legal, financial and accounting advisors, to, at the expense of Parent, use its and their reasonable best efforts to provide such cooperation as may be is reasonably requested by Parent, to assist Parent in arrangingconnection with its financing (the “Financing”) in connection with the Transactions, obtaining or syndicating the Debt Financing, the Alternative Financing or any debt or equity financing undertaken in any form in replacement of all or any portion of such Debt Financing or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality of the foregoing, upon the reasonable request by Parent, the Company will and will cause its Subsidiaries and its Representatives to use its and their reasonable best efforts to:
including (i) as promptly as participating in a reasonable number of meetings, drafting sessions and due diligence sessions, and reasonably practicable provide information (financial or otherwise) relating to the Company to assisting Parent and the Financing Sources (including information in the preparation of definitive financing documents, offering documents, rating agency presentations and other materials reasonably and customarily requested to be used in connection with obtaining the preparation of an information package regarding the businessFinancing, operations, financial condition, financial projections and prospects of Parent and the Company customary for the completion of such financing(ii) to the extent if reasonably requested by Parent or a Financing Source, providing direct contact between senior management and representatives (including accountants) of the Company, on the one hand, and Financing Sources or potential Financing Sources, potential lenders and investors for the Financing, on the other hand, (iii) providing reasonably promptly to Parent and the Financing Sources to prepare customary offering or information documents to be used for the completion of the Debt Financing, including participation in any drafting sessions;
(ii) reasonably cooperate and assist with the due diligence, ratings agency process and marketing efforts of Parent, its Representatives and the Financing Sources, including participation by officers and other representatives, with appropriate seniority and expertise, in a reasonable number of investor meetings, presentations, sessions with ratings agencies, due diligence sessions and road shows, at times and at locations reasonably requested by Parent and upon reasonable advance notice;
(iii) reasonably assist in preparing customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, lender presentations, financial statements, private placement memoranda, prospectuses, filings with the SEC and other similar documents, including delivery of and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or the Alternative Financing of (A) audited consolidated balance sheets and related audited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended at least 75 days prior to the Closing Date (and internal control reports and audit reports for such financial statements, which will not be subject to any “going concern” qualifications), (B) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, and (C) all other historical financial and other information regarding the Company reasonably necessary to permit Parent to prepare pro forma financial statements required or customary for the Debt Financing and a securities offering contemplated by the Debt Financing or the Alternative Financing;
(iv) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and Subsidiaries which is set forth on Schedule 7.13 or such other financial information relating to that is readily available or within the Company and its SubsidiariesCompany’s possession, in each case, as may be is reasonably requested by Parent, the Financing Sources or as may be requested by the SEC in connection with the completion of the Debt Financing or Alternative Financing;
(v) reasonably facilitate the pledge of collateral required under the Debt Commitment Letter to be delivered and become effective at the Closing as may be reasonably requested by Parent (it being acknowledged that no such pledge may become effective other than concurrently with the Closing Date and the termination of certain of the Company’s existing financing arrangements), and assisting Parent, the Financing Sources and their respective Representatives in obtaining customary payoff letters, Lien releases, instruments of termination or discharge (in each case only to the extent such Indebtedness is required to be repaid in full on the Closing Date or in respect of which a default or event of default would arise as a result of the consummation of the transactions contemplated hereunder) and in each case to be effective upon receipt in cash of the payoff amount;
(vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with the Debt Financing or the Alternative Financing;
(vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the financial statements of the Company provided pursuant to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentation, including by providing customary representation letters, and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including by participating in any accounting due diligence sessions;
(viii) subject to customary confidentiality provisions, provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors;
(ix) provide or cause to be provided any customary certificates or opinions as may reasonably be requested in connection with obtaining the Debt Financing and the Alternative Financing; and
, (xiv) provide all reasonably available information about the Company and its Subsidiaries executing and delivering reasonable and customary certificates, management representation letters and other documentation required by the Financing Sources and the definitive documentation relating to the extent required under applicable “know your customer” and anti-money laundering rules and regulations, including under the USA PATRIOT Act of 2001.
(b) Notwithstanding Section 6.11(a)Financing, (iv) using commercially reasonable efforts to cooperate in satisfying the conditions precedent set forth in any definitive documentation relating to the Financing, (vi) delivering notices of prepayment within the time periods required by the agreements governing the Closing Indebtedness for the repayment in full thereof at the Effective Time; (vii) delivering possessory collateral (such as certificated equity and promissory notes) within its possession or the possession of Closing Indebtedness lenders, and (viii) taking all reasonable formal corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent in connection with the consummation of the Financing; provided, however, that (1) neither the Company nor any of its Subsidiaries will shall be required to pay any commitment or other similar fee or incur, prior to the Closing, any other liability or obligation in connection with the Debt Financing, (ii) none of the Company, its Subsidiaries or their respective officers, directors, employees or advisors will be required to execute or enter into or perform any agreement (including any opinion, solvency certificate or other deliverable) with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Closing (other than authorization letters contemplated by Section 6.11(a)(vii)) and the boards of directors or other equivalent governing bodies of the Company, Parent, Merger Sub or the Surviving Corporation will not be required to enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources pursuant to the Debt Commitment Letter that are effective prior to the Closing, (iii) nothing herein will obligate the Company or any of its Subsidiaries to provide or cause to be provided any information or take or cause to be taken any action such cooperation to the extent it would result in a violation of applicable Law or such Person’s respective organizational documents, loss of any legal privilege or a default, event of default, or acceleration under, or termination of any Contract in effect on the date of this Agreement, and (iv) nothing herein will obligate the Company or any of its Subsidiaries to take any action that would (x) unreasonably interfere cooperation materially interferes with the ongoing Company’s or its Subsidiaries’ day to day operations of or to produce the information above if such information is unavailable to the Company or its Subsidiaries or (y) its production is impracticable or would cause any condition undue burden to the Company and its Subsidiaries, (2) unless otherwise expressly agreed by the Company in its sole discretion, the effectiveness of the documentation executed or delivered by the Company under this Section 7.13 shall be subject to the effectiveness of the Merger, (3) the pre-Closing board of the directors of the Company or any Company Subsidiary (or equivalent governing body) shall not be required to approve any document or other matter related to the Financing or incur any liability with respect thereto, (4) Parent shall coordinate its request for the Company’s assistance so as to minimize disruption to the Company’s executive officers’ day to day responsibilities, and (5) the Company’s obligations set forth herein in this Section 7.13 shall not include any obligation on the part of the Company to not be satisfied (I) obtain accountants’ comfort letters or otherwise cause legal opinions, (II) provide solvency opinions, (III) provide Regulation S-X compliant financial statements, or (IV) incur any breach of this Agreementliability in connection with, related to or arising from the Financing or to any Financing Source prior to the Effective Time. Parent willshall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying connection with the cooperation contemplated by this Section 7.13. The Company shall notify Parent promptly if it materially restates any audited historical financial statements of the Company or any of its obligations Subsidiaries provided for under this Section 6.11.
(c) Parent will indemnify and hold harmless 7.13, in whole or in part. Notwithstanding the foregoing, neither the Company and each nor any of its Subsidiaries and their respective Representatives from and against shall be required to pay any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and commitment or other charges paid similar fee or payable incur any other liability in connection with or in respect of any thereof) suffered or incurred in connection with any financing or other securities offering of Parent or its Subsidiaries or any assistance or activities provided in connection therewith; provided that Parent will have no obligation to indemnify or hold harmless any such Person the Financing prior to the extent Effective Time. The Company will be deemed in compliance with this Section 7.13, and neither Parent nor Merger Sub may allege that any such liabilitiesthe Company is or has not been in compliance with this Section 7.13, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are suffered or incurred as a result unless Parent provides prompt written notice of the gross negligencealleged failure to comply specifying in reasonable detail specific steps to cure such alleged failure in a commercially reasonable and practicable manner consistent with this Section 7.13, willful misconduct or fraud which failure to comply has not been cured within ten (10) Business Days from receipt of such written notice (in which case the Outside Date shall also be extended by the number of days that the Company actually failed to be in compliance with this Section 7.13, including any portion of the Company as determined by a court of competent jurisdiction in a final non-appealable verdict.
(d) In no event will the receipt or availability of any funds or financing (including the Debt Financing contemplated cure period used by the Debt Commitment Letter) by or to Parent or any other financing transaction be a condition to any of the obligations of Parent hereunderCompany).
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Verint Systems Inc)
Financing Assistance. (a) The Prior to the Closing, the Company willshall, and will shall cause its Subsidiaries and its Representatives to, at the expense of Parent, use its and their commercially reasonable best efforts to provide such cooperation that is customary as may be reasonably requested by Parent, Parent to assist Parent in arranging, obtaining or syndicating the Debt Financing, debt financing provided by the Alternative Financing Bridge Facility Agreement (or any financing intended to replace or refinance the debt or equity financing undertaken in any form in replacement of all provided by the Bridge Facility Agreement) or any portion of such Debt Financing other third party debt financing necessary or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality of the foregoing, upon the reasonable request incurred by Parent, any wholly owned Subsidiary of Parent or any Merger Sub to consummate the transactions contemplated hereby (the “Debt Financing”) (provided, that such requested cooperation does not unreasonably interfere with the ongoing business or operations of the Company will and will cause its Subsidiaries and or require the Company or any of its Representatives Subsidiaries to use its and their waive or amend any terms of this Agreement), including using commercially reasonable best efforts to:
(i) as promptly as reasonably practicable provide information (financial cooperate with the customary marketing efforts or otherwise) relating to the Company to the Financing Sources (including information to be used in the preparation of an information package regarding the business, operations, financial condition, financial projections and prospects due diligence efforts of Parent and the Company customary for the completion of such financing) to the extent reasonably requested by Parent in connection with all or the Financing Sources to prepare customary offering or information documents to be used for the completion any portion of the Debt Financing, including participation making available members of the management team with appropriate seniority and expertise to assist in any preparation for and to participate in a mutually agreed number (on reasonable notice) of meetings, presentations, road shows, due diligence sessions, drafting sessions;sessions and sessions with proposed lenders, underwriters, initial purchasers, placement agents, investors and rating agencies,
(ii) reasonably cooperate and assist with the due diligence, ratings agency process and marketing efforts of Parent, its Representatives and the Financing Sources, including participation by officers and other representatives, with appropriate seniority and expertise, in a on reasonable number of investor meetings, presentations, sessions with ratings agencies, due diligence sessions and road shows, at times and at locations reasonably requested by Parent and upon reasonable advance notice;
(iii) reasonably assist in preparing notice comment on customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, bank information memoranda, lender and investor presentations, financial road show materials, confidential information memoranda, registration statements, prospectuses, prospectus supplements, private placement memoranda, prospectuses, filings and similar documents customarily required in connection with the SEC and other similar documentsDebt Financing, including delivery of the marketing and consenting syndication thereof,
(iii) cause the Company’s independent accountants and/or auditors to provide customary cooperation with the Debt Financing, (iv)
(I) to the inclusion or incorporation in extent customary for Parent to prepare marketing materials for any SEC filing related to the Debt Financing or of the Alternative applicable type, furnish Parent and the applicable Financing of Sources with (A) audited consolidated balance sheets and related audited statements of incomeoperations, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended at least 75 more than sixty (60) days prior to the Closing Date (and internal control reports and audit reports for such financial statements, which will not be subject to any “going concern” qualifications)Date, (B) unaudited consolidated balance sheets and related unaudited consolidated statements of incomeoperations, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter interim quarterly period ended at least 45 more than 40 days prior to the Closing Date, in the case of each of clauses (I)(A) and (I)(B), prepared in accordance with GAAP, and (C) all if the Parent is pursuing a registered public offering of debt securities and has notified the Company of such election, such other historical financial and other information regarding of the Company reasonably type required by Regulation S-X and Regulation S-K under the 1933 Act in each case that is customary for such offering or as otherwise necessary to permit the Company’s independent accountants and/or auditors to issue customary “comfort letters” to Parent’s Financing Sources in connection with such offering, including as to customary negative assurances required to consummate such offering (it being understood that the Company need only to provide information to assist the Parent to prepare in the preparation of pro forma financial statements information, and shall not in any event be required to provide pro forma financial statements, projections or customary for the Debt Financing pro forma adjustments), and a securities offering contemplated by the Debt Financing or the Alternative Financing;
(ivII) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company furnish Parent and its Subsidiaries, documents and Financing Sources with such other customary information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources or as may be requested by the SEC in connection with the completion of the Debt Financing or Alternative Financing;
(v) reasonably facilitate the pledge of collateral required under the Debt Commitment Letter to be delivered and become effective at the Closing as may be Subsidiaries that is reasonably requested by Parent (it being acknowledged that no such pledge may become effective other than concurrently with the Closing Date and the termination of certain is customarily required in marketing materials for Debt Financings of the Company’s existing financing arrangements), and assisting Parent, the Financing Sources and their respective Representatives in obtaining customary payoff letters, Lien releases, instruments of termination or discharge (in each case only to the extent such Indebtedness is required to be repaid in full on the Closing Date or in respect of which a default or event of default would arise as a result of the consummation of the transactions contemplated hereunder) and in each case to be effective upon receipt in cash of the payoff amount;
(vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with the Debt Financing or the Alternative Financing;
(vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the financial statements of the Company provided pursuant to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentation, including by providing customary representation letters, and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including by participating in any accounting due diligence sessions;
(viii) subject to customary confidentiality provisions, provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors;
(ix) provide or cause to be provided any customary certificates or opinions as may reasonably be requested in connection with the Debt Financing and the Alternative Financing; and
(x) provide all reasonably available information about the Company and its Subsidiaries to the extent required under applicable “know your customer” and anti-money laundering rules and regulations, including under the USA PATRIOT Act of 2001type.
(b) Notwithstanding Section 6.11(a), (i) neither the Company nor any of its Subsidiaries will be required to pay any commitment or other similar fee or incur, prior to the Closing, any other liability or obligation in connection with the Debt Financing, (ii) none of the Company, its Subsidiaries or their respective officers, directors, employees or advisors will be required to execute or enter into or perform any agreement (including any opinion, solvency certificate or other deliverable) with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Closing (other than authorization letters contemplated by Section 6.11(a)(vii)) and the boards of directors or other equivalent governing bodies of the Company, Parent, Merger Sub or the Surviving Corporation will not be required to enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources pursuant to the Debt Commitment Letter that are effective prior to the Closing, (iii) nothing herein will obligate the Company or any of its Subsidiaries to provide or cause to be provided any information or take or cause to be taken any action to the extent it would result in a violation of applicable Law or such Person’s respective organizational documents, loss of any legal privilege or a default, event of default, or acceleration under, or termination of any Contract in effect on the date of this Agreement, and (iv) nothing herein will obligate the Company or any of its Subsidiaries to take any action that would (x) unreasonably interfere with the ongoing operations of the Company or its Subsidiaries or (y) cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement. Parent will, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.11.
(c) Parent will indemnify and hold harmless the Company and each of its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) suffered or incurred in connection with any financing or other securities offering of Parent or its Subsidiaries or any assistance or activities provided in connection therewith; provided that Parent will have no obligation to indemnify or hold harmless any such Person to the extent that any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are suffered or incurred as a result of the gross negligence, willful misconduct or fraud of the Company as determined by a court of competent jurisdiction in a final non-appealable verdict.
(d) In no event will the receipt or availability of any funds or financing (including the Debt Financing contemplated by the Debt Commitment Letter) by or to Parent or any other financing transaction be a condition to any of the obligations of Parent hereunder.
Appears in 2 contracts
Sources: Merger Agreement (Alexion Pharmaceuticals, Inc.), Merger Agreement (Alexion Pharmaceuticals, Inc.)
Financing Assistance. (a) The Prior to the Closing, the Company willshall, and will shall cause its Subsidiaries and its Representatives to, at the expense of Parent, use its and their commercially reasonable best efforts to provide such customary cooperation as may be reasonably requested by Parent, Parent in writing to assist Parent in arranging, obtaining or syndicating the Debt FinancingFinancing (which term shall include, the Alternative Financing or any debt or equity financing undertaken in any form in replacement of all or any portion of such Debt Financing or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality this Section 6.03, any of the foregoing, upon permanent financing referred to in the reasonable request by Parent, Debt Commitment Letters) (provided that such requested cooperation does not unreasonably interfere with the ongoing business or operations of the Company will and will cause its Subsidiaries and its Representatives to use its and their Subsidiaries), including using commercially reasonable best efforts to:
(i) as promptly as reasonably practicable provide information (financial cooperate with the marketing efforts or otherwise) relating to the Company to the Financing Sources (including information to be used in the preparation due diligence efforts of an information package regarding the business, operations, financial condition, financial projections and prospects of Parent and the Company customary for the completion of such financing) to the extent reasonably requested by Parent or the Financing Sources to prepare customary offering or information documents to be used for the completion of Sources, in each case, in connection with the Debt Financing, including participation in any drafting sessions;
(ii) reasonably cooperate and assist with the due diligence, ratings agency process and marketing using commercially reasonable efforts to cause members of Parent, its Representatives and the Financing Sources, including participation by officers and other representatives, management with appropriate seniority and expertise, expertise to participate in a reasonable number of investor meetings, presentations, sessions with ratings agencies, due diligence sessions, rating agency sessions and road shows, at times and at locations reasonably requested by Parent acceptable to the Company and upon reasonable advance notice;
(iiiii) reasonably assist Parent in preparing customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, lender and investor presentations, financial statementsconfidential information memoranda, private placement memoranda, prospectuses, filings with the SEC prospectuses and other similar documentsdocuments for the Debt Financing, and as promptly as practicable provide historical financial and other customary information relating to the Company to Parent and the Financing Sources to the extent reasonably requested by Parent, including delivery of delivering and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or the Alternative Financing of (A) audited consolidated balance sheets and related audited consolidated statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended at least 75 more than sixty (60) days prior to the Closing Date (and internal control reports and audit reports for such financial statements, which will statements shall not be subject to any “going concern” qualifications), (B) unaudited consolidated balance sheets and related unaudited consolidated statements of income, comprehensive income, stockholders’ equity income and cash flows of the Company for each subsequent fiscal quarter ended at least 45 more than forty five (45) days prior to the Closing Date, Date and (C) all other historical financial and other customary information regarding the Company reasonably necessary to permit Parent to prepare pro forma financial statements required or customary for the Debt Financing bank financing and a the debt securities offering contemplated by the Debt Financing or the Alternative FinancingFinancing (provided, that, without limiting the foregoing, nothing in this Section 6.03(a) or Section 6.04 shall require the Company to prepare any pro forma financial information or projections, which shall be the sole responsibility of Parent);
(iviii) make availableprovide to Parent and the Financing Sources promptly, on a customary and reasonable basis in any event at least four (4) Business Days prior to the Closing Date, all documentation and upon reasonable notice, appropriate personnel, including Representatives of other information about the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested Subsidiaries required by Parent, the Financing Sources or as may be requested by the SEC in connection regulatory authorities with the completion of respect to the Debt Financing or Alternative Financing;
(v) reasonably facilitate under applicable “know your customer” and anti-money laundering rules and regulations, including the pledge of collateral PATRIOT Act, that is required under the any Debt Commitment Letter or any definitive agreement related to be delivered and become effective at the Closing as may be reasonably requested by Parent (it being acknowledged that no such pledge may become effective other than concurrently with the Closing Date and the termination of certain of the Company’s existing financing arrangements), and assisting Parent, the Debt Financing Sources and their respective Representatives in obtaining customary payoff letters, Lien releases, instruments of termination or discharge (in each case only to the extent such Indebtedness documentation and other information is required requested in writing to be repaid in full on the Company at least ten (10) Business Days prior to the Closing Date or in respect of which a default or event of default would arise as a result of the consummation of the transactions contemplated hereunder) and in each case to be effective upon receipt in cash of the payoff amount;Date,
(vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with the Debt Financing or the Alternative Financing;
(viiiv) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the financial statements of the Company provided pursuant to Section 6.11(a)(iii6.03(ii)(A) in any filing or registration statement of Parent with the SEC or any prospectus, offering memoranda, private placement memoranda memoranda, marketing material or similar documentation, including by providing customary representation letters, letters and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including by participating in any accounting due diligence sessions;sessions at times and at locations reasonably acceptable to the Company and its independent public accounting firm and upon reasonable notice,
(viiiv) subject to customary confidentiality provisionsprovisions and disclaimers, provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors;,
(ixvi) (A) deliver notices of prepayment and/or notices for termination of commitments within the time periods required by the Credit Agreement and obtain customary payoff letters and if applicable, instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of the Credit Agreement; provided that any such notice or payoff letter shall be expressly conditioned on the Closing and (B) assist Parent in delivering, on the Closing Date, the supplemental indentures and officers’ certificates required to be delivered under Section 6.1 of each of the applicable Indentures due to the consummation of the Merger,
(vii) provide information concerning the Company and its Subsidiaries reasonably necessary for the completion of the definitive documentation for the Debt Financing, including any schedules thereto,
(viii) provide or cause to be provided any customary certificates certificates, or opinions other customary closing documents as may reasonably be requested in connection with the Debt Financing and the Alternative Financing; , and
(xix) provide all reasonably available information about consent to the use of the trademarks, service marks and logos of the Company and or any of its Subsidiaries in connection with the Debt Financing; provided that such trademarks, service marks and logos are used solely in a manner that is not intended to or is reasonably likely to harm or disparage the extent required under applicable “know your customer” and anti-money laundering rules and regulations, including under Company or its Subsidiaries or the USA PATRIOT Act reputation or goodwill of 2001the Company or any of its Subsidiaries.
(b) Notwithstanding the foregoing or anything the contrary set forth in Section 6.11(a)6.04 below, (i) neither the Company nor any of its Subsidiaries will shall be required to (i) take or permit the taking of any action pursuant to Section 6.03(a) or Section 6.04 that (A) would require the Company, its Subsidiaries or any Persons who are directors or officers of the Company or its Subsidiaries to pass resolutions or consents to approve or authorize the execution of the Debt Financing, or any Company Note Offers and Consent Solicitations or execute or deliver any certificate, document, instrument or agreement or agree to any change or modification of any existing certificate, document, instrument or agreement, in each case, that is effective prior to the Closing, or that would be effective if the Closing does not occur (other than (x) authorization letters contemplated by Section 6.03(a)(v) and (y) to the extent required by Section 6.04, applicable Company Supplemental Indentures and Company Indenture Officers’ Certificates); (B) would cause any representation or warranty in this Agreement to be breached by the Company or any of its Subsidiaries (unless waived by Parent); (C) would require the Company or any of its Subsidiaries to pay any commitment or other similar fee or incur, prior to the Closing, Closing or incur any other expense, liability or obligation in connection with the Debt FinancingFinancing or any Company Note Offers and Consent Solicitations that is not, (ii) none of the Company, its Subsidiaries or their respective officers, directors, employees or advisors will be required to execute or enter into or perform any agreement (including any opinion, solvency certificate or other deliverable) with respect subject to the Debt Financing that limitations contained therein, subject to reimbursement or is not contingent upon the Closing occurring or that would be effective prior to the Closing (other than authorization letters contemplated otherwise indemnified by Section 6.11(a)(vii)) and the boards of directors or other equivalent governing bodies of the Company, Parent, Merger Sub or the Surviving Corporation will not be required to enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources Parent pursuant to the Debt Commitment Letter that are effective prior to the ClosingSection 6.03(c); (D) would cause any director, (iii) nothing herein will obligate officer or employee or stockholder of the Company or any of its Subsidiaries to provide incur any personal liability; or cause to be provided any information or take or cause to be taken any action to the extent it (E) would result in a material violation of applicable Law or such Person’s respective organizational documentsbreach of, loss of any legal privilege or a default, event of default, or acceleration default under, or termination of any material Contract in effect on the date of this Agreement, and (iv) nothing herein will obligate to which the Company or any of its Subsidiaries to take any action that would (x) unreasonably interfere with is a party, the ongoing operations organizational documents of the Company or its Subsidiaries or any Applicable Law; (yii) provide access to or disclose information that the Company or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries or (iii) deliver or cause to be delivered any condition opinion of counsel (other than, to the Closing set forth herein extent required by Section 6.04 in connection with the entry into a Company Supplemental Indenture, a Company Opinion of Counsel if the trustee under the applicable Indenture that the Company Supplemental Indenture amends requires an opinion of counsel to not be satisfied the Company). Nothing contained in this Section 6.03 or Section 6.04 or otherwise cause shall require the Company or any breach of this Agreement. its Subsidiaries, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing or to commence any Company Note Offers and Consent Solicitations.
(c) Parent willand Merger Sub shall, on a joint and several basis, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in connection with the Debt Financing or any Company Note Offers and Consent Solicitations or satisfying its obligations under this Section 6.11.
(c) 6.03 or Section 6.04, whether or not the Merger is consummated or this Agreement is terminated. Parent will and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company and each of its Subsidiaries and their respective Representatives from and against any and all liabilitieslosses, lossesclaims, damages, claimsliabilities, reasonable out-of-pocket costs, expensesreasonable out-of-pocket attorneys’ fees, interestjudgments, awardsfines, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) suffered or incurred in connection with the Debt Financing or any financing Company Note Offers and Consent Solicitations or other securities offering otherwise in connection with any action taken by the Company, any of Parent or its Subsidiaries or any assistance of their respective Representatives pursuant to this Section 6.03 or activities Section 6.04 (other than the use of any information provided by the Company, any of its Subsidiaries or any of their respective Representatives in writing for use in connection therewith; provided that Parent will have no obligation to indemnify with the Debt Financing or hold harmless any Company Note Offers and Consent Solicitations), except (A) in the event such Person to the extent that any such liabilitieslosses, lossesclaims, damages, claimsliabilities, costs, expensesattorneys’ fees, interestjudgments, awardsfines, judgments penalties and penalties amounts paid in settlement are suffered or incurred as a result of the gross negligence, willful misconduct or fraud of the Company as determined by a final non-appealable judgment of a court of competent jurisdiction in a final non-appealable verdictto have arisen out of, or resulted from, the fraud, gross negligence or willful misconduct of the Company, any of its Subsidiaries or any of their respective Representatives or (B) if this Agreement is terminated by Parent pursuant to Section 10.01(c)(ii).
(d) In no event will Notwithstanding anything to the receipt or availability contrary in this Agreement, the Company’s breach of any funds of the covenants required to be performed by it under this Section 6.03 or financing (including Section 6.04 will not be considered in determining the satisfaction of the condition set forth in Section 9.02(a) unless such breach is the primary cause of Parent being unable to obtain the proceeds of the Debt Financing contemplated by at the Debt Commitment Letter) by or to Parent or any other financing transaction be a condition to any of the obligations of Parent hereunderClosing.
Appears in 2 contracts
Sources: Merger Agreement (Celgene Corp /De/), Merger Agreement (Bristol Myers Squibb Co)
Financing Assistance. (a) The Company willBuyer shall use its commercially reasonable efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, advisable, or proper to obtain the Debt Financing on or prior to the Closing Date. Buyer shall give Seller prompt written notice if and when Buyer becomes aware that any portion of the Debt Financing may not be available for the purposes of consummating the transactions contemplated by this Agreement. Buyer shall keep Seller informed on a reasonably current basis with reasonably detailed information about the status of Buyer’s efforts to obtain the Debt Financing. Buyer shall not take any action that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated hereby, including the Debt Financing.
(b) Seller shall use its commercially reasonable efforts to cause its officials, employees, attorneys, accountants, and will cause its Subsidiaries other Representatives to provide all customary cooperation that is reasonably requested by Buyer and its Representatives toreasonably necessary to arrange for and obtain the Debt Financing, to the extent that the participation by members of management of Seller is reasonably necessary in connection therewith. Seller shall provide such commercially reasonable assistance as is customarily provided for in financings of the type contemplated by the Debt Financing, including using commercially reasonable efforts, at Buyer’s cost and expense, in (i) (A) designating one or more members of senior management of Seller to participate in, at reasonable times and upon reasonable notice, a reasonable number of investor presentations and rating agency materials and presentations and (B) assisting with the expense preparation of Parentcustomary offering documents and materials of Buyer, use its including private placement or offering memoranda, bank information memoranda, bank syndication material and their reasonable best efforts packages, and similar documents and materials, in connection with the Debt Financing (all such documents and materials, collectively, the “Offering Documents”), (ii) furnishing to provide such cooperation Buyer all ML&P Information (including execution of customary authorization and management representation letters) as may be reasonably requested by Parent, Buyer to assist Parent in arrangingthe preparation of the Offering Documents, obtaining (iii) providing information that is reasonably available or syndicating readily obtainable regarding Seller to assist Buyer in preparing Buyer’s pro forma financial statements to the extent specified by SEC Regulation S-X, and designating, upon request, whether any such information is suitable to be made available to lenders and other investors who do not wish to receive material non-public information, (iv) designating one or more members of senior management of Seller to participate, at reasonable times and upon reasonable notice, in due diligence sessions, drafting sessions, management presentations, rating agency presentations (subject to customary confidentiality provisions), lender meetings (including one-on-one meetings), and one or more road shows, (v) requesting ML&P’s independent auditors to cooperate reasonably with Buyer’s independent auditors, participate in customary accounting due diligence sessions, and provide customary accountant’s comfort letters and consents that are used in any offering document for the Debt Financing, the Alternative Financing or any debt or equity financing undertaken in any form in replacement of all or any portion of such Debt Financing or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality of the foregoing, upon the reasonable request by Parent, the Company will and will cause its Subsidiaries and its Representatives to use its and their reasonable best efforts to:
(ivi) as promptly as reasonably practicable provide information (financial or otherwise) relating to the Company to the Financing Sources (including information to be used assisting in the preparation of an information package regarding of, and executing and delivering at the businessClosing, operations, financial condition, financial projections and prospects of Parent and the Company customary for the completion of such financing) to the extent reasonably requested by Parent or the Financing Sources to prepare customary offering or information definitive documents to be used for the completion of the Debt Financing, including participation in any drafting sessions;
(ii) reasonably cooperate and assist with the due diligence, ratings agency process and marketing efforts of Parent, its Representatives and the Financing Sources, including participation by officers and other representatives, with appropriate seniority and expertise, in a reasonable number of investor meetings, presentations, sessions with ratings agencies, due diligence sessions and road shows, at times and at locations reasonably requested by Parent and upon reasonable advance notice;
(iii) reasonably assist in preparing customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, lender presentations, financial statements, private placement memoranda, prospectuses, filings with the SEC and other similar documents, including delivery of and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or the Alternative Financing of and other customary certificates and documents as may be reasonably requested by Buyer.
(Ac) audited consolidated balance sheets and related audited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended at least 75 days prior Notwithstanding anything to the Closing Date contrary contained in this Section 6.13, nothing in this Section 6.13 shall require any such cooperation to the extent that it would
(and internal control reports and audit reports for such financial statementsi) require Seller to pay any commitment or other fees, which will not be subject reimburse any expenses or otherwise incur any liabilities or give any indemnities, (ii) unreasonably interfere with the Business, (iii) require Seller to enter into or approve any agreement or other documentation or agree to any “going concern” qualifications)change or modification of any existing agreement or other documentation, (Biv) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, and (C) all other historical financial and other information regarding the Company reasonably necessary to permit Parent require Seller to prepare pro forma financial statements required or customary for the Debt Financing and a securities offering contemplated by pro forma adjustments reflecting the Debt Financing or the Alternative transactions contemplated by this Agreement (provided that Seller shall otherwise cooperate with the preparation of such pro forma financial statements and pro forma adjustments prepared by Buyer), (v) require Seller to approve or authorize the Debt Financing;
, or (ivvi) make availablerequire Seller to cause the delivery of (A) legal opinions or reliance letters or any certificate as to solvency or any other certificate necessary for the Debt Financing, on a other than accountants’ customary and reasonable basis and upon reasonable noticecomfort letters as contemplated by clause (v) of Section 6.13(b), appropriate personnel(B) any audited financial information or any financial information prepared in accordance with Regulation S-K or Regulation S-X under the Securities Act of 1933, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiariesor any financial information, in each case, as may be reasonably requested in a form not customarily prepared by ParentSeller with respect to any period (provided, that for the avoidance of doubt, the Financing Sources foregoing clause (B) shall not be relied upon to prevent Seller from delivering its year-end audited financial statements or as may be requested by the SEC in connection with the completion of the Debt Financing or Alternative Financing;
(v) reasonably facilitate the pledge of collateral required under the Debt Commitment Letter to be delivered and become effective at the Closing as may be reasonably requested by Parent (it being acknowledged that no such pledge may become effective other than concurrently with the Closing Date and the termination of certain of the Company’s existing financing arrangements), and assisting Parent, the Financing Sources and their respective Representatives in obtaining customary payoff letters, Lien releases, instruments of termination or discharge (in each case only quarterly unaudited financial statements to the extent such Indebtedness is otherwise required to be repaid by this Agreement or assisting Buyer reasonably in full on the Closing Date preparing necessary information) or in respect of which a default or event of default would arise as a result of the consummation of the transactions contemplated hereunder(C) and in each case to be effective upon receipt in cash of the payoff amount;
(vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with the Debt Financing or the Alternative Financing;
(vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion or incorporation of their audit reports financial information with respect to a month or fiscal period that has not yet ended or that has ended less than 90 days, or less than 210 days in the financial statements case of the Company provided pursuant to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentation, including by providing customary representation letters, and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including by participating in any accounting due diligence sessions;
(viii) subject to customary confidentiality provisions, provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors;
(ix) provide or cause to be provided any customary certificates or opinions as may reasonably be requested in connection with the Debt Financing and the Alternative Financing; and
(x) provide all reasonably available information about the Company and its Subsidiaries to the extent required under applicable “know your customer” and anti-money laundering rules and regulations, including under the USA PATRIOT Act of 2001.
(b) Notwithstanding Section 6.11(a), (i) neither the Company nor any of its Subsidiaries will be required to pay any commitment or other similar fee or incuran annual period, prior to the Closing, any other liability or obligation in connection with the Debt Financing, (ii) none of the Company, its Subsidiaries or their respective officers, directors, employees or advisors will be required to execute or enter into or perform any agreement (including any opinion, solvency certificate or other deliverable) with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Closing (other than authorization letters contemplated by Section 6.11(a)(vii)) and the boards of directors or other equivalent governing bodies of the Company, Parent, Merger Sub or the Surviving Corporation will not be required to enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources pursuant to the Debt Commitment Letter that are effective prior to the Closing, (iii) nothing herein will obligate the Company or any of its Subsidiaries to provide or cause to be provided any information or take or cause to be taken any action to the extent it would result in a violation of applicable Law or such Person’s respective organizational documents, loss of any legal privilege or a default, event of default, or acceleration under, or termination of any Contract in effect on the date of this Agreement, and such request.
(ivd) nothing herein will obligate the Company or any of its Subsidiaries to take any action that would Buyer shall (xi) unreasonably interfere with the ongoing operations of the Company or its Subsidiaries or (y) cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement. Parent will, promptly upon request by the Company, reimburse the Company Seller for all reasonable and documented out-of-pocket costs and or expenses (including reasonable attorneys’ feesand documented costs and expenses of counsel and accountants) incurred by the Company Seller or any of its Subsidiaries Representatives in satisfying its obligations under connection with any cooperation provided for in this Section 6.11.
6.13, and (cii) Parent will indemnify and hold harmless the Company Seller and each and all of its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) suffered or incurred in connection with any financing or other securities offering of Parent or its Subsidiaries or any assistance or activities provided in connection therewith; provided that Parent will have no obligation to indemnify or hold harmless any such Person to the extent that any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are suffered or Losses incurred as a result of the gross negligenceof, willful misconduct or fraud of the Company as determined by a court of competent jurisdiction in a final non-appealable verdict.
(d) In no event will the receipt connection with, any cooperation provided for in this Section 6.13 or availability of any funds or financing (including the Debt Financing contemplated by and any information used in connection therewith, unless Seller acted in bad faith or with gross negligence and other than in the Debt Commitment Letter) by or to Parent or any other financing transaction be a condition to any case of the obligations of Parent hereunderfraud.
Appears in 2 contracts
Sources: Asset Purchase and Sale Agreement, Asset Purchase and Sale Agreement
Financing Assistance. (1) The Company will use commercially reasonable efforts to provide, and will use commercially reasonable efforts to cause its Representatives (including counsel, financial advisors and auditors) and Subsidiaries to use their respective commercially reasonable efforts to provide, all reasonable and customary cooperation that is reasonably requested by the Parent to assist the Parent in the arrangement of the Financing and the consummation of any Exchange Offer (provided that such requested cooperation does not unreasonably interfere with the ongoing business or operations of the Company and its Subsidiaries), including using commercially reasonable efforts in connection with the following:
(a) The Company willreasonably cooperating with the marketing efforts or due diligence efforts in connection with the Financing and any Exchange Offer, including providing reasonable access to documents and will cause its Subsidiaries other information in connection therewith and its Representatives to, at the expense of Parent, use its and their using commercially reasonable best efforts to provide such cooperation as may be reasonably requested by Parent, to assist Parent in arranging, obtaining or syndicating the Debt Financing, the Alternative Financing or any debt or equity financing undertaken in any form in replacement cause members of all or any portion of such Debt Financing or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality of the foregoing, upon the reasonable request by Parent, the Company will and will cause its Subsidiaries and its Representatives to use its and their reasonable best efforts to:
(i) as promptly as reasonably practicable provide information (financial or otherwise) relating to the Company to the Financing Sources (including information to be used in the preparation of an information package regarding the business, operations, financial condition, financial projections and prospects of Parent and the Company customary for the completion of such financing) to the extent reasonably requested by Parent or the Financing Sources to prepare customary offering or information documents to be used for the completion of the Debt Financing, including participation in any drafting sessions;
(ii) reasonably cooperate and assist with the due diligence, ratings agency process and marketing efforts of Parent, its Representatives and the Financing Sources, including participation by officers and other representatives, management with appropriate seniority and expertise, expertise to participate in a reasonable number of investor meetings, presentations, sessions with ratings agencies, due diligence sessions, rating agency sessions and road shows, at times and at locations reasonably requested by Parent acceptable to the Company and upon reasonable advance notice;
(iiib) reasonably assist assisting the Parent in preparing (i) customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, road show materials, lender and investor presentations, financial statementsconfidential information memoranda, private placement memoranda, prospectuses, filings with the SEC prospectuses and other similar documentsdocuments for the Financing, and (ii) customary Debt Offer Documents for any Exchange Offer;
(c) delivering historical financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by the Parent and that is customarily required for financings of the type contemplated by the Financing or for exchange offers of the type contemplated by the Exchange Offers, including delivery of and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or the Alternative Financing of (Ai) U.S. GAAP audited consolidated balance sheets and related audited consolidated statements of income, income and comprehensive income, stockholders’ statements of changes in equity and cash flows of the Company and its Subsidiaries for each of the three most recent fiscal years most recently year ended at least 75 sixty (60) days prior to the Closing Date (and internal control reports and audit reports for such financial statements, which will not be subject to any “going concern” qualifications)Effective Date, (Bii) U.S. GAAP unaudited condensed consolidated balance sheets and related unaudited condensed consolidated statements of income, income and comprehensive income, stockholders’ statements of changes in equity and cash flows of the Company and its Subsidiaries for each subsequent fiscal quarter ended at least 45 forty (40) days before the Effective Time (which shall have been reviewed by the independent accountants for the Company) (other than any fourth fiscal quarter), and the corresponding period in the prior year; provided that the financial statements required to be delivered pursuant to the Closing Dateforegoing clauses (i) and (ii) shall meet the requirements of Regulation S-X under the 1933 Act, and all other accounting rules and regulations of the SEC promulgated thereunder applicable to a registration statement under such Act on Form S-3, and (Ciii) all other historical financial and other information regarding the Company reasonably necessary to permit historical information for the Parent to prepare customary pro forma financial statements required or customary for information meeting the Debt Financing requirements of Regulation S-X under the 1933 Act, and all other accounting rules and regulations of the SEC promulgated thereunder applicable to a securities offering contemplated by the Debt Financing or the Alternative Financingregistration statement under such Act on Form S-3;
(ivd) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of providing to the Company Parent’s legal counsel and its Subsidiaries, independent auditors such customary documents and other customary or pertinent information relating to the Company and its Subsidiaries, in each case, Subsidiaries as may be reasonably requested by Parentin connection with their delivery of any customary legal opinions, negative assurance letters and customary comfort letters relating to the Financing Sources and any Exchange Offer;
(e) causing the Company’s independent auditors to provide customary cooperation with the Financing and any Exchange Offer, including using commercially reasonable efforts to cause them to provide customary comfort letters (including customary “negative assurance” and “change period” comfort) and consents for use of their reports or references to such independent auditors as may be requested by the SEC experts in any marketing materials, registration statements or related government filings, on customary terms and consistent with their customary practice in connection with the completion of the Debt Financing or Alternative Financingand any Exchange Offer, and assistance with accounting due diligence activities;
(v) reasonably facilitate the pledge of collateral required under the Debt Commitment Letter to be delivered and become effective at the Closing as may be reasonably requested by Parent (it being acknowledged that no such pledge may become effective other than concurrently with the Closing Date and the termination of certain of the Company’s existing financing arrangements), and assisting Parent, the Financing Sources and their respective Representatives in obtaining customary payoff letters, Lien releases, instruments of termination or discharge (in each case only to the extent such Indebtedness is required to be repaid in full on the Closing Date or in respect of which a default or event of default would arise as a result of the consummation of the transactions contemplated hereunder) and in each case to be effective upon receipt in cash of the payoff amount;
(vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with the Debt Financing or the Alternative Financing;
(vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the financial statements of the Company provided pursuant to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentation, including by providing customary representation letters, and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including by participating in any accounting due diligence sessions;
(viiif) subject to customary confidentiality provisionsprovisions and disclaimers, provide providing customary authorization letters with respect to the Financing Sources Financing, authorizing the distribution of information with respect to the Company and its Subsidiaries (but not, for the avoidance of doubt, the Parent, the Purchaser and their respective Subsidiaries) to prospective lenders or investors;
(ixg) provide delivering notices of prepayment within the time periods required by the Company Credit Agreements (which may be conditional upon the Effective Date), and using commercially reasonable efforts to obtain customary payoff letters, lien terminations and instructions of discharge and to give any other necessary notices to allow for the payoff, discharge and termination of the indebtedness under the Company Credit Agreements concurrently with the Effective Date; and
(h) permitting the reasonable use by Parent of the Company’s or cause to be provided any customary certificates or opinions of its Subsidiaries’ trademarks, service marks and logos as may reasonably be requested required in connection with the Debt Financing and the Alternative Financing; and
any Exchange Offer (x) provide all reasonably available information about provided that each such use is pre-approved in writing by the Company and its Subsidiaries such trademarks, service marks and logos are used solely in a manner that is not intended to the extent required under applicable “know your customer” and anti-money laundering rules and regulations, including under the USA PATRIOT Act of 2001.
(b) Notwithstanding Section 6.11(a), (i) neither is not reasonably likely to harm or disparage the Company nor any of its Subsidiaries will be required to pay any commitment or other similar fee or incur, prior to the Closing, any other liability or obligation in connection with the Debt Financing, (ii) none of the Company, its Subsidiaries or their respective officers, directors, employees the reputation or advisors will be required to execute or enter into or perform any agreement (including any opinion, solvency certificate or other deliverable) with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Closing (other than authorization letters contemplated by Section 6.11(a)(vii)) and the boards goodwill of directors or other equivalent governing bodies of the Company, Parent, Merger Sub or the Surviving Corporation will not be required to enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources pursuant to the Debt Commitment Letter that are effective prior to the Closing, (iii) nothing herein will obligate the Company or any of its Subsidiaries Subsidiaries).
(2) The Parent or its Affiliates will be permitted to provide (a) commence and conduct, in accordance with the terms of the 2028 Senior Notes Indenture or cause the 2030 Senior Notes Indenture, as applicable, any one or more offers to be provided purchase (including any information “Change of Control Offer” (as such term is defined in the 2028 Senior Notes Indenture or take the 2030 Senior Notes Indenture, as applicable)) and/or tender offers (each, a “Tender Offer” and collectively, the “Tender Offers”) and/or exchange offers (each, an “Exchange Offer” and collectively, the “Exchange Offers”), with respect to any or cause to be taken any action all of the outstanding aggregate principal amount of the 2028 Senior Notes and/or the 2030 Senior Notes identified by the Parent or its Affiliates to the extent it would result Company in a violation of applicable Law writing on or such Person’s respective organizational documents, loss of any legal privilege or a default, event of default, or acceleration under, or termination of any Contract in effect on after the date of this Agreement, and (ivb) nothing herein solicit the consent of the holders of the 2028 Senior Notes and/or the 2030 Senior Notes (each, a “Consent Solicitation” and collectively, the “Consent Solicitations,” and, together with the Tender Offers and Exchange Offers, the “Debt Offers”) regarding certain proposed amendments to the 2028 Senior Notes Indenture and/or the 2030 Senior Notes Indenture, as applicable, identified by the Parent or its Affiliates to the Company in writing on or after the date of this Agreement. Any Debt Offer will obligate be made on such terms and conditions (including price to be paid and conditionality) as are proposed by the Parent or its Affiliates and which are permitted by the terms of the 2028 Senior Notes Indenture or the 2030 Senior Notes Indenture, as applicable, and Applicable Law. The Parent shall consult with the Company regarding the material terms and conditions of any Debt Offers, including the timing and commencement of any Debt Offers and any tender or consent deadlines. The Parent or its Affiliates will provide the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal, press release (if any) or other related documents in connection with any Debt Offer (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel to review and comment on the related Debt Offer Documents, and the Parent shall give reasonable and good faith consideration to any comments made or input provided by the Company and its legal counsel. The closing (or, if applicable, effectiveness) of the Debt Offers shall not be consummated until the occurrence of the Effective Time and any such transaction shall be funded using consideration provided by the Parent; provided that the consummation of a Debt Offer with respect to the 2028 Senior Notes or the 2030 Senior Notes will not be a condition to the Parent’s or its Affiliates’ obligations to consummate the transactions contemplated by this Agreement. The Debt Offers will be conducted in compliance with the 2028 Senior Notes Indenture or the 2030 Senior Notes Indenture, as applicable, and Applicable Law and the Company will not be required to cooperate with respect to any Debt Offer that is not in compliance with the 2028 Senior Notes Indenture or the 2030 Senior Notes Indenture, as applicable, and Applicable Laws. The Company will use commercially reasonable efforts to provide, and will use commercially reasonable efforts to cause its Representatives (including counsel, financial advisors and auditors) and Subsidiaries to use their respective commercially reasonable efforts to provide, all reasonable and customary cooperation as may be reasonably requested by the Parent in connection with any Debt Offers including as set forth in Section 4.4(1); provided that such requested cooperation does not unreasonably interfere with the ongoing business or operations of the Company and its Subsidiaries; provided, further, that neither the Company nor counsel for the Company shall be required to furnish any certificates, legal opinions or negative assurance letters in connection with any Debt Offer or execute any other instruments or agreements in connection therewith (in each case, except as provided in Section 4.4(3)). The dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any Debt Offer will be selected by the Parent or its Affiliates, retained by the Parent or its Affiliates, and their fees and out-of-pocket expenses will be paid directly by the Parent or its Affiliates. If, at any time prior to the completion of the Debt Offers, the Company or any of its Subsidiaries Subsidiaries, on the one hand, or the Parent or any of its Subsidiaries, on the other hand, discovers any information that should be set forth in an amendment or supplement to take the Debt Offer Documents, so that the Debt Offer Documents shall not contain any action untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such Party that would (x) unreasonably interfere with discovers such information shall use commercially reasonable efforts to promptly notify the ongoing operations other Party, and an appropriate amendment or supplement prepared by the Parent describing such information shall be disseminated to the holders of the applicable notes of the Company outstanding under the applicable Indenture.
(3) Subject to the receipt of any requisite consents from the holders of the 2028 Senior Notes or the 2030 Senior Notes, as applicable, the Company and its Subsidiaries will execute one or more supplemental indentures to the 2028 Senior Notes Indenture or the 2030 Senior Notes Indenture, as applicable, in accordance with the 2028 Senior Notes Indenture or the 2030 Senior Notes Indenture, as applicable (any such supplemental indenture, a “Supplemental Indenture” and, collectively, the “Supplemental Indentures”), amending the terms and provisions of the 2028 Senior Notes Indenture or the 2030 Senior Notes Indenture, as applicable, as described in any applicable Debt Offer Documents as reasonably requested by the Parent or its Subsidiaries Affiliates, which Supplemental Indentures will become operative no earlier than the Effective Time, and will use commercially reasonable efforts to cause the trustee under the 2028 Senior Notes Indenture or (y) cause the 2030 Senior Notes Indenture, as applicable, to enter into any condition to such Supplemental Indentures, in each case, before or substantially simultaneously with the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement. Parent will, promptly upon request Effective Time as determined by the CompanyParent or its Affiliates; provided, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by however, that in no event will the Company or any of its officers, directors or other Representatives have any obligation to authorize, adopt or execute any amendments or other agreement that is not permitted under the 2028 Senior Notes Indenture or the 2030 Senior Notes Indenture, as applicable, or Applicable Law or would become operative before the Effective Time. The Company will use commercially reasonable efforts to provide, and will use commercially reasonable efforts to cause its Representatives (including counsel, financial advisors and auditors) and Subsidiaries to use their respective commercially reasonable efforts to provide, all reasonable and customary cooperation as may be reasonably requested by the Parent in satisfying connection with the execution of Supplemental Indentures; provided that such requested cooperation does not unreasonably interfere with the ongoing business or operations of the Company and its obligations Subsidiaries. If reasonably requested by the Parent or its Affiliates, the Company will use commercially reasonable efforts to provide, and will use commercially reasonable efforts to cause its legal counsel to provide, all customary certificates and legal opinions required by the trustee under this Section 6.11the applicable Indenture in connection with the execution of any Supplemental Indentures to the extent (x) such certificates and legal opinions are required to be delivered before the Effective Time and (y) in the case of any such legal opinions, the trustee under the applicable Indenture requires an opinion of counsel to the Company thereunder. Notwithstanding the foregoing, in no event will the Company or its legal counsel be required to give any certificate or opinion with respect to a Debt Offer that, in the opinion of the Company, its legal counsel or the trustee under the 2028 Senior Notes Indenture and/or the 2030 Senior Notes Indenture, as applicable, does not comply with Applicable Laws or the 2028 Senior Notes Indenture and/or the 2030 Senior Notes Indenture, as applicable, or would not be accurate in light of the facts and circumstances at the time delivered.
(c4) If requested by the Parent will indemnify and hold harmless or any of its Affiliates, in lieu of, in addition to or in combination with the Parent or its Affiliates commencing any Debt Offer for the 2028 Senior Notes and/or the 2030 Senior Notes, the Company will, to the extent permitted by the 2028 Senior Notes Indenture or the 2030 Senior Notes Indenture, as applicable, (A) issue one or more conditional notices of optional redemption for all or a portion of the outstanding aggregate principal amount of the 2028 Senior Notes and/or the 2030 Senior Notes (which may be delivered at the Parent’s or Purchaser’s reasonable request in advance of the Effective Time so long as they are contingent upon the Effective Time (it being understood and each agreed that they may also be contingent upon the occurrence of its Subsidiaries other events in addition to the Effective Time)), pursuant to the optional redemption provisions of the 2028 Senior Notes Indenture or the 2030 Senior Notes Indenture, respectively, and their respective Representatives from (B) take any other actions reasonably requested by the Parent or Purchaser to facilitate the satisfaction and against any discharge of the 2028 Senior Notes and/or the 2030 Senior Notes pursuant to the satisfaction and discharge provisions of the 2028 Senior Notes Indenture or the 2030 Senior Notes Indenture, respectively, and the other provisions of the 2028 Senior Notes Indenture or the 2030 Senior Notes Indenture, respectively, applicable thereto. If a conditional notice of optional redemption is given, the Parent or Purchaser will ensure that at the Effective Time, so long as the applicable conditions of such optional redemption are satisfied, the Company has all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) suffered or incurred funds necessary in connection with any financing or other securities offering of Parent or such optional redemption. The Company will use commercially reasonable efforts to provide, and will use commercially reasonable efforts to cause its Subsidiaries or any assistance or activities provided in connection therewith; provided that Parent will have no obligation to indemnify or hold harmless any such Person to the extent that any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are suffered or incurred as a result of the gross negligence, willful misconduct or fraud of the Company as determined by a court of competent jurisdiction in a final non-appealable verdict.
(d) In no event will the receipt or availability of any funds or financing Representatives (including the Debt Financing contemplated by the Debt Commitment Lettercounsel, financial advisors and auditors) by or and Subsidiaries to Parent or any other financing transaction be a condition to any of the obligations of Parent hereunder.provide, all reasonable and customary coope
Appears in 2 contracts
Sources: Arrangement Agreement (Owens Corning), Arrangement Agreement (Masonite International Corp)
Financing Assistance. (a) The Prior to the Closing, the Company willshall, and will shall use reasonable best efforts to cause each of its Subsidiaries and its Representatives to, at the expense of Parent, use its and their reasonable best efforts to provide such cooperation as may be reasonably requested by Parent, to assist Parent in arranging, obtaining or syndicating connection with the Debt arrangement of the Financing (such Financing, the Alternative Financing or together with any debt or equity financing undertaken in any form in replacement of all or any portion of such Debt Financing or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality of the foregoing, upon the reasonable request by Parent, the Company will and will cause its Subsidiaries and its Representatives to use its and their reasonable best efforts to:
(i) as promptly as reasonably practicable provide information (financial or otherwise) relating to the Company to the Financing Sources (including information to be used in the preparation of an information package regarding the business, operations, financial condition, financial projections and prospects of Parent and the Company customary for the completion of such financing) to the extent reasonably requested by Parent or the Financing Sources to prepare customary offering or information documents to be used for the completion of the Debt Financing, including participation in any drafting sessions;
(ii) reasonably cooperate and assist with the due diligence, ratings agency process and marketing efforts of Parent, its Representatives and the Financing Sources, including participation by officers and other representatives, with appropriate seniority and expertise, in a reasonable number of investor meetings, presentations, sessions with ratings agencies, due diligence sessions and road shows, at times and at locations reasonably requested by Parent and upon reasonable advance notice;
(iii) reasonably assist in preparing customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, lender presentations, financial statements, private placement memoranda, prospectuses, filings with the SEC and other similar documents, including delivery of and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or the Alternative Financing of (A) audited consolidated balance sheets and related audited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended at least 75 days prior to the Closing Date (and internal control reports and audit reports for such financial statements, which will not be subject to any “going concern” qualifications), (B) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, and (C) all other historical financial and other information regarding the Company reasonably necessary to permit Parent to prepare pro forma financial statements required or customary for the Debt Financing and a securities offering contemplated by the Debt Financing or Commitment, collectively, the Alternative “Applicable Financing;
”) (iv) make availableprovided that such requested cooperation is not in violation of applicable Law, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives does not unreasonably interfere with the operations of the Company and its Subsidiaries), documents and information relating including (i) using reasonable best efforts to the Company and its Subsidiaries, in each case, as may be reasonably requested by promptly furnish to Parent, Midco and Merger Sub and the Financing Sources or as may be requested by all Required Information, (ii) using reasonable best efforts to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions and drafting sessions with the SEC Financing Sources, any prospective lenders and investors in the Applicable Financing and rating agencies (including direct contact between senior management and Representatives (including accounting) of the Company) and to cooperate reasonably with the Financing Sources’ due diligence, to the extent customary and reasonable for the Financing, (iii) using reasonable best efforts to assist with the drafting and preparation of appropriate and customary materials for rating agency presentations, offering and syndication documents (including prospectuses, private placement memoranda, lender and investor presentations, bank information memoranda and similar documents) business projections and other marketing documents required in connection with the completion Applicable Financing (all such documents and materials, collectively the “Offering Documents”), to identify any portion of any information contained in any Offering Documents that constitutes material nonpublic information, and to cause the chief financial officer or person performing similar functions of the Debt Financing or Alternative Financing;
(v) reasonably facilitate the pledge of collateral required under the Debt Commitment Letter Company to be delivered execute and become effective at the Closing as may be reasonably requested by Parent (it being acknowledged that no such pledge may become effective other than concurrently with the Closing Date deliver customary authorization and the termination of certain of the Company’s existing financing arrangements), customary representation and assisting Parent, the Financing Sources and their respective Representatives in obtaining customary payoff letters, Lien releases, instruments of termination or discharge (in each case only to the extent such Indebtedness is required to be repaid in full on the Closing Date or in respect of which a default or event of default would arise as a result of the consummation of the transactions contemplated hereunder) and in each case to be effective upon receipt in cash of the payoff amount;
(vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with the Debt Financing or the Alternative Financing;
(vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) obtain customary comfort warranty letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the financial statements of the Company provided pursuant Offering Documents, (iv) using reasonable best efforts to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentation, including by providing customary representation letters, and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including taking of customary corporate actions by participating in any accounting due diligence sessions;
(viii) subject to customary confidentiality provisions, provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors;
(ix) provide or cause to be provided any customary certificates or opinions as may reasonably be requested in connection with the Debt Financing and the Alternative Financing; and
(x) provide all reasonably available information about the Company and its Subsidiaries to the extent required under applicable “know your customer” and anti-money laundering rules and regulations, including under the USA PATRIOT Act of 2001.
(b) Notwithstanding Section 6.11(a), (i) neither the Company nor any of its Subsidiaries will be required to pay any commitment or other similar fee or incur, prior subject to the Closing, any other liability or obligation in connection with ) reasonably necessary for the Debt Financing, (ii) none consummation of the CompanyFinancing and the Closing, its Subsidiaries or their respective officers, directors, employees or advisors will be required to execute or enter into or perform any agreement (including any opinion, solvency certificate or other deliverable) with respect to the Debt Financing provided that is not contingent upon the Closing occurring or that would no such action shall be effective prior to the Closing (other than authorization letters contemplated by Section 6.11(a)(vii)) and the boards of directors or other equivalent governing bodies of the Company, Parent, Merger Sub or the Surviving Corporation will not be required to enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources pursuant to the Debt Commitment Letter that are effective prior to the ClosingEffective Time, (iiiv) nothing herein will obligate in accordance with applicable Law, facilitating the Company or any providing of its Subsidiaries to provide or cause to be provided any information or take or cause to be taken any action to the extent it would result in guarantees and granting of a violation of applicable Law or such Person’s respective organizational documents, loss of any legal privilege or a default, event of default, or acceleration under, or termination of any Contract in effect on the date of this Agreement, security interest (and (iv) nothing herein will obligate the Company or any of its Subsidiaries to take any action that would (x) unreasonably interfere with the ongoing operations of the Company or its Subsidiaries or (y) cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement. Parent will, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.11.
(c) Parent will indemnify and hold harmless the Company and each of its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any perfection thereof) suffered or incurred in connection with any financing or other securities offering and pledge of Parent or its Subsidiaries or any assistance or activities provided in connection therewith; provided that Parent will have no obligation to indemnify or hold harmless any such Person to the extent that any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments collateral and penalties are suffered or incurred as a result of the gross negligence, willful misconduct or fraud of the Company as determined by a court of competent jurisdiction in a final non-appealable verdict.
(d) In no event will the receipt or availability of any funds or financing (including the Debt Financing contemplated by the Debt Commitment Letter) by or to Parent or any other financing transaction be a condition to any of the obligations of Parent hereunder.using
Appears in 2 contracts
Sources: Merger Agreement (Chen Chris Shuning), Merger Agreement (Pactera Technology International Ltd.)
Financing Assistance. The Company shall provide cooperation reasonably necessary in connection with (i) Buyer’s arrangement of financing to consummate the transactions contemplated in this Agreement and (ii) at Buyer’s option, the repayment of all borrowings under the ▇▇▇▇▇▇▇ Credit Agreement as of the Closing (the “Acquisition Financing”), including (a) The to cause the appropriate officers of the Company willand the Company Subsidiary to participate in reasonable meetings, drafting sessions, due diligence sessions, management presentation sessions, road shows and will sessions with rating agencies, in each case which are customary for financings similar to the Acquisition Financing, (b) to cause its Subsidiaries the appropriate officers of the Company and its Representatives to, at the expense of Parent, use its and their reasonable best efforts to provide such cooperation as may be reasonably requested by Parent, Company Subsidiary to assist Parent in arranging, obtaining or syndicating the Debt Financing, the Alternative Financing or any debt or equity financing undertaken in any form in replacement of all or any portion of such Debt Financing or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality of the foregoing, upon the reasonable request by Parent, the Company will and will cause its Subsidiaries and its Representatives to use its and their reasonable best efforts to:
(i) as promptly as reasonably practicable provide information (financial or otherwise) relating to the Company to the Financing Sources (including information to be used Buyer in the preparation of an information package regarding business projections with respect to the business, operations, financial condition, financial projections and prospects of Parent and the Company business that are customary for financings similar to the completion of such financingAcquisition Financing, (c) to cause the extent reasonably requested by Parent or the Financing Sources to prepare customary offering or information documents to be used for the completion of the Debt Financing, including participation in any drafting sessions;
(ii) reasonably cooperate and assist with the due diligence, ratings agency process and marketing efforts of Parent, its Representatives and the Financing Sources, including participation by appropriate officers and other representatives, with appropriate seniority and expertise, in a reasonable number of investor meetings, presentations, sessions with ratings agencies, due diligence sessions and road shows, at times and at locations reasonably requested by Parent and upon reasonable advance notice;
(iii) reasonably assist in preparing customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, lender presentations, financial statements, private placement memoranda, prospectuses, filings with the SEC and other similar documents, including delivery of and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or the Alternative Financing of (A) audited consolidated balance sheets and related audited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended at least 75 days prior to the Closing Date (and internal control reports and audit reports for such financial statements, which will not be subject to any “going concern” qualifications), (B) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, and (C) all other historical financial and other information regarding the Company reasonably necessary to permit Parent to prepare pro forma financial statements required or customary for the Debt Financing and a securities offering contemplated by the Debt Financing or the Alternative Financing;
(iv) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company Subsidiary to execute and its Subsidiariesdeliver any underwriting or placement agreements, in each casepledge and security documents, as may be reasonably requested by Parent, the Financing Sources lien release or as may be requested by the SEC termination documents in connection with the completion repayment of the Debt Financing or Alternative Financing;
(v) reasonably facilitate the pledge of collateral required all borrowings under the Debt Commitment Letter to be delivered and become effective at the Closing as may be reasonably ▇▇▇▇▇▇▇ Credit Agreement, other definitive financing documents, indemnity agreements, or documents or other requested by Parent certificates (it being acknowledged that no such pledge may become effective other than concurrently with the Closing Date and the termination of certain of the Company’s existing financing arrangementsincluding officers’ certificates), and assisting Parent, the Financing Sources and their respective Representatives in obtaining customary payoff letters, Lien releases, instruments of termination or discharge (in each case only which are customary for financings similar to the extent such Indebtedness is required Acquisition Financing and (d) to be repaid in full on the Closing Date or in respect of which a default or event of default would arise as a result of the consummation of the transactions contemplated hereunder) and in each case use commercially reasonable efforts to be effective upon receipt in cash of the payoff amount;
(vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with the Debt Financing or the Alternative Financing;
(vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm accountants to reasonably cooperate with Buyer in its efforts to arrange the Acquisition Financing (provided no fees or expenses of such accountants incurred for the purpose will be included in the Expense Amount), including to provide any customary comfort letter and consent to the inclusion or incorporation of their audit reports with respect to the financial statements of the Company provided pursuant to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentation, including by providing customary representation letters, and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including by participating in any accounting due diligence sessions;
(viii) subject to customary confidentiality provisions, provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors;
(ix) provide or cause to be provided any customary certificates or opinions as may reasonably be requested in connection with the Debt Acquisition Financing and the Alternative Financing; and
(x) provide all as reasonably available information about the Company and its Subsidiaries to the extent required under applicable “know your customer” and anti-money laundering rules and regulations, including under the USA PATRIOT Act of 2001requested by Buyer.
(b) Notwithstanding Section 6.11(a), (i) neither the Company nor any of its Subsidiaries will be required to pay any commitment or other similar fee or incur, prior to the Closing, any other liability or obligation in connection with the Debt Financing, (ii) none of the Company, its Subsidiaries or their respective officers, directors, employees or advisors will be required to execute or enter into or perform any agreement (including any opinion, solvency certificate or other deliverable) with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Closing (other than authorization letters contemplated by Section 6.11(a)(vii)) and the boards of directors or other equivalent governing bodies of the Company, Parent, Merger Sub or the Surviving Corporation will not be required to enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources pursuant to the Debt Commitment Letter that are effective prior to the Closing, (iii) nothing herein will obligate the Company or any of its Subsidiaries to provide or cause to be provided any information or take or cause to be taken any action to the extent it would result in a violation of applicable Law or such Person’s respective organizational documents, loss of any legal privilege or a default, event of default, or acceleration under, or termination of any Contract in effect on the date of this Agreement, and (iv) nothing herein will obligate the Company or any of its Subsidiaries to take any action that would (x) unreasonably interfere with the ongoing operations of the Company or its Subsidiaries or (y) cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement. Parent will, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.11.
(c) Parent will indemnify and hold harmless the Company and each of its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) suffered or incurred in connection with any financing or other securities offering of Parent or its Subsidiaries or any assistance or activities provided in connection therewith; provided that Parent will have no obligation to indemnify or hold harmless any such Person to the extent that any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are suffered or incurred as a result of the gross negligence, willful misconduct or fraud of the Company as determined by a court of competent jurisdiction in a final non-appealable verdict.
(d) In no event will the receipt or availability of any funds or financing (including the Debt Financing contemplated by the Debt Commitment Letter) by or to Parent or any other financing transaction be a condition to any of the obligations of Parent hereunder.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Freedom Group, Inc.), Stock Purchase Agreement (Remington Arms Co Inc/)
Financing Assistance. (a) The Prior to the Closing, the Company willshall, and will shall cause its Subsidiaries and its Representatives to, at the expense of Parent, use its and their commercially reasonable best efforts to provide such cooperation that is customary as may be reasonably requested by Parent, Parent to assist Parent in arranging, obtaining or syndicating the Debt Financing, debt financing provided by the Alternative Financing Bridge Facility Agreement (or any financing intended to replace or refinance the debt or equity financing undertaken in any form in replacement of all provided by the Bridge Facility Agreement) or any portion of such Debt Financing other third party debt financing necessary or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality of the foregoing, upon the reasonable request incurred by Parent, any wholly owned Subsidiary of Parent or any Merger Sub to consummate the transactions contemplated hereby (the “Debt Financing”) (provided, that such requested cooperation does not unreasonably interfere with the ongoing business or operations of the Company will and will cause its Subsidiaries and or require the Company or any of its Representatives Subsidiaries to use its and their waive or amend any terms of this Agreement), including using commercially reasonable best efforts to:
(i) as promptly as reasonably practicable provide information (financial cooperate with the customary marketing efforts or otherwise) relating to the Company to the Financing Sources (including information to be used in the preparation of an information package regarding the business, operations, financial condition, financial projections and prospects due diligence efforts of Parent and the Company customary for the completion of such financing) to the extent reasonably requested by Parent in connection with all or the Financing Sources to prepare customary offering or information documents to be used for the completion any portion of the Debt Financing, including participation making available members of the management team with appropriate seniority and expertise to assist in any preparation for and to participate in a mutually agreed number (on reasonable notice) of meetings, presentations, road shows, due diligence sessions, drafting sessions;sessions and sessions with proposed lenders, underwriters, initial purchasers, placement agents, investors and rating agencies,
(ii) reasonably cooperate and assist with the due diligence, ratings agency process and marketing efforts of Parent, its Representatives and the Financing Sources, including participation by officers and other representatives, with appropriate seniority and expertise, in a on reasonable number of investor meetings, presentations, sessions with ratings agencies, due diligence sessions and road shows, at times and at locations reasonably requested by Parent and upon reasonable advance notice;
(iii) reasonably assist in preparing notice comment on customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, bank information memoranda, lender and investor presentations, financial road show materials, confidential information memoranda, registration statements, prospectuses, prospectus supplements, private placement memoranda, prospectuses, filings and similar documents customarily required in connection with the SEC and other similar documentsDebt Financing, including delivery of the marketing and consenting syndication thereof,
(iii) cause the Company’s independent accountants and/or auditors to provide customary cooperation with the Debt Financing, (iv) (I) to the inclusion or incorporation in extent customary for Parent to prepare marketing materials for any SEC filing related to the Debt Financing or of the Alternative applicable type, furnish Parent and the applicable Financing of Sources with (A) audited consolidated balance sheets and related audited statements of incomeoperations, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended at least 75 more than sixty (60) days prior to the Closing Date (and internal control reports and audit reports for such financial statements, which will not be subject to any “going concern” qualifications)Date, (B) unaudited consolidated balance sheets and related unaudited consolidated statements of incomeoperations, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter interim quarterly period ended at least 45 more than 40 days prior to the Closing Date, in the case of each of clauses (I)(A) and (I)(B), prepared in accordance with GAAP, and (C) all if the Parent is pursuing a registered public offering of debt securities and has notified the Company of such election, such other historical financial and other information regarding of the Company reasonably type required by Regulation S-X and Regulation S-K under the 1933 Act in each case that is customary for such offering or as otherwise necessary to permit the Company’s independent accountants and/or auditors to issue customary “comfort letters” to Parent’s Financing Sources in connection with such offering, including as to customary negative assurances required to consummate such offering (it being understood that the Company need only to provide information to assist the Parent to prepare in the preparation of pro forma financial statements information, and shall not in any event be required to provide pro forma financial statements, projections or customary for the Debt Financing pro forma adjustments), and a securities offering contemplated by the Debt Financing or the Alternative Financing;
(ivII) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company furnish Parent and its Subsidiaries, documents and Financing Sources with such other customary information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources or as may be requested by the SEC in connection with the completion of the Debt Financing or Alternative Financing;
(v) reasonably facilitate the pledge of collateral required under the Debt Commitment Letter to be delivered and become effective at the Closing as may be Subsidiaries that is reasonably requested by Parent (it being acknowledged that no such pledge may become effective other than concurrently with the Closing Date and the termination of certain is customarily required in marketing materials for Debt Financings of the Company’s existing financing arrangements), and assisting Parent, the Financing Sources and their respective Representatives in obtaining customary payoff letters, Lien releases, instruments of termination or discharge (in each case only to the extent such Indebtedness is required to be repaid in full on the Closing Date or in respect of which a default or event of default would arise as a result of the consummation of the transactions contemplated hereunder) and in each case to be effective upon receipt in cash of the payoff amount;
(vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with the Debt Financing or the Alternative Financing;
(vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the financial statements of the Company provided pursuant to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentation, including by providing customary representation letters, and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including by participating in any accounting due diligence sessions;
(viii) subject to customary confidentiality provisions, provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors;
(ix) provide or cause to be provided any customary certificates or opinions as may reasonably be requested in connection with the Debt Financing and the Alternative Financing; and
(x) provide all reasonably available information about the Company and its Subsidiaries to the extent required under applicable “know your customer” and anti-money laundering rules and regulations, including under the USA PATRIOT Act of 2001type.
(b) Notwithstanding Section 6.11(a), (i) neither the Company nor any of its Subsidiaries will be required to pay any commitment or other similar fee or incur, prior to the Closing, any other liability or obligation in connection with the Debt Financing, (ii) none of the Company, its Subsidiaries or their respective officers, directors, employees or advisors will be required to execute or enter into or perform any agreement (including any opinion, solvency certificate or other deliverable) with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Closing (other than authorization letters contemplated by Section 6.11(a)(vii)) and the boards of directors or other equivalent governing bodies of the Company, Parent, Merger Sub or the Surviving Corporation will not be required to enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources pursuant to the Debt Commitment Letter that are effective prior to the Closing, (iii) nothing herein will obligate the Company or any of its Subsidiaries to provide or cause to be provided any information or take or cause to be taken any action to the extent it would result in a violation of applicable Law or such Person’s respective organizational documents, loss of any legal privilege or a default, event of default, or acceleration under, or termination of any Contract in effect on the date of this Agreement, and (iv) nothing herein will obligate the Company or any of its Subsidiaries to take any action that would (x) unreasonably interfere with the ongoing operations of the Company or its Subsidiaries or (y) cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement. Parent will, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.11.
(c) Parent will indemnify and hold harmless the Company and each of its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) suffered or incurred in connection with any financing or other securities offering of Parent or its Subsidiaries or any assistance or activities provided in connection therewith; provided that Parent will have no obligation to indemnify or hold harmless any such Person to the extent that any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are suffered or incurred as a result of the gross negligence, willful misconduct or fraud of the Company as determined by a court of competent jurisdiction in a final non-appealable verdict.
(d) In no event will the receipt or availability of any funds or financing (including the Debt Financing contemplated by the Debt Commitment Letter) by or to Parent or any other financing transaction be a condition to any of the obligations of Parent hereunder.
Appears in 1 contract
Sources: Merger Agreement
Financing Assistance. (a) The Company willPrior to the Closing, the Partnership agrees to use reasonable best efforts to provide, and will shall cause its the Partnership’s Subsidiaries and its Representatives to, at the expense of Parent, use its and their officers, directors and employees to use reasonable best efforts to provide such and shall use its reasonable best efforts to direct its and their accountants, legal counsel and other representatives to provide, all cooperation as may be reasonably requested by Parent, to assist Parent in arranging, obtaining or syndicating connection with the Debt Financing, the Alternative Financing or any debt or equity financing undertaken in any form in replacement of all or any portion of such Debt Financing or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality of the foregoing, upon the reasonable request by Parent, the Company will and will cause its Subsidiaries and its Representatives to use its and their reasonable best efforts to:
(i) as promptly as reasonably practicable provide information (financial or otherwise) relating to the Company to the Financing Sources (including information to be used in the preparation of an information package regarding the business, operations, financial condition, financial projections and prospects of Parent and the Company customary for the completion of such financing) to the extent reasonably requested by Parent or the Financing Sources to prepare customary offering or information documents to be used for the completion arrangement of the Debt Financing, including participation in any drafting sessions;
(ii) reasonably cooperate and assist with the due diligence, ratings agency process and marketing efforts of Parent, its Representatives and the Financing Sources, including participation by officers and other representatives, with appropriate seniority and expertise, in a reasonable number of investor meetings, presentations, sessions with ratings agencies, due diligence sessions and road shows, at times and at locations reasonably requested by Parent and upon reasonable advance notice;
(iii) reasonably assist in preparing customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, lender presentations, financial statements, private placement memoranda, prospectuses, filings with the SEC and other similar documents, including delivery of and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or the Alternative Financing of (A) audited consolidated balance sheets and related audited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended at least 75 days prior to the Closing Date (and internal control reports and audit reports for such financial statements, which will not be subject to any “going concern” qualifications), (B) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, and (C) all other historical financial and other information regarding the Company reasonably necessary to permit Parent to prepare pro forma financial statements required or customary for the Debt Financing and a securities offering contemplated by the Debt Financing or the Alternative Financing;
(iv) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnelCommitment Letter, including Representatives using reasonable best efforts to (i) assist with the preparation of disclosure schedules, projections and similar documents in connection therewith, (ii) furnish to Parent (A) the Company Required Financial Information and (B) such other financial and other pertinent information regarding the Partnership and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources or as may be requested by the SEC in connection with the completion of the Debt Financing or Alternative Financing;
(v) reasonably facilitate the pledge of collateral required under the Debt Commitment Letter to be delivered and become effective at the Closing Subsidiaries as may be reasonably requested by Parent and that is customarily needed for financings of the type contemplated by the Debt Commitment Letter, (it being acknowledged that no such pledge may become effective other than concurrently iii) reasonably cooperate with the Closing Date marketing efforts of Parent and the termination of certain of the Company’s existing financing arrangements), and assisting Parent, the Lead Debt Financing Sources with respect to the Debt Financing, including cooperating in the preparation of any bank information memoranda and their respective Representatives in obtaining customary payoff lettersmaterials for ratings agencies, Lien releases, instruments of termination or discharge (in each case case, only to the extent such Indebtedness is required customarily needed for financings of the type contemplated by the Debt Commitment Letter and participating in a reasonable number of investor and bank meetings, due diligence sessions, and investor and bank presentations, (iv) provide Parent all documentation and other information with respect to be repaid the Partnership and its Subsidiaries as shall have been reasonably requested in full on writing by Parent at least nine (9) days prior to the Closing Date or in respect of which a default or event of default would arise as a result of the consummation of the transactions contemplated hereunder) and in each case to be effective upon receipt in cash of the payoff amount;
(vi) obtain any necessary consents from the Company’s independent public accounting firm that is required in connection with the Debt Financing or the Alternative Financing;
(vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the financial statements of the Company provided pursuant to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentation, including by providing customary representation letters, and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including by participating in any accounting due diligence sessions;
(viii) subject to customary confidentiality provisions, provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors;
(ix) provide or cause to be provided any customary certificates or opinions as may reasonably be requested in connection with the Debt Financing and the Alternative Financing; and
(x) provide all reasonably available information about the Company and its Subsidiaries to the extent required U.S. regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including under the USA PATRIOT Act Patriot Act, and that are required by Section 9 of 2001.
(b) Notwithstanding Section 6.11(a)Exhibit D of the Debt Commitment Letter, (iv) neither reasonably facilitate the Company nor any pledging of its Subsidiaries will be required to pay any commitment or other similar fee or incur, prior to collateral substantially concurrently with the Closing, any other liability including obtaining such documentation and/or taking such steps (including lien searches, payoff letters, lien releases and instruments of termination or obligation discharge) reasonably requested by Parent or its financing sources in connection with order to release all Liens over the Debt Financing, (ii) none properties and assets of the Company, its Subsidiaries Partnership securing obligations under the Indebtedness of the Partnership and taking reasonable actions necessary to permit the Lead Debt Financing Sources to evaluate the Partnership’s assets for the purposes of establishing collateral arrangements and (vi) seek to cause the Partnership’s independent registered accounting firm to provide customary comfort letters to any underwriters or their respective officers, directors, employees or advisors will be required to execute or enter into or perform any agreement initial purchasers consistent with SAS 72 (including any opinion, solvency certificate or other deliverableas amended) with respect to the Debt Financing that is not contingent upon Partnership’s financial statements and other financial information included in the Closing occurring or that would be effective prior to Required Financial Information. Notwithstanding the Closing (other than authorization letters contemplated by Section 6.11(a)(vii)) and the boards of directors or other equivalent governing bodies of the Company, Parent, Merger Sub or the Surviving Corporation will not be required to enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources pursuant to the Debt Commitment Letter that are effective prior to the Closingforegoing, (iiiA) nothing herein will obligate the Company or any of its Subsidiaries to provide or cause to be provided any information or take or cause to be taken any action to the extent it would result in a violation of applicable Law or such Person’s respective organizational documents, loss of any legal privilege or a default, event of default, or acceleration under, or termination of any Contract in effect on the date of this Agreement, and (iv) nothing herein will obligate the Company or any of its Subsidiaries to take any action that would (x) requested cooperation shall not unreasonably interfere with the business or the ongoing operations of the Company or its Subsidiaries or Partnership and/or the Partnership’s Subsidiaries, (yB) nothing in this Section 7.12 shall require cooperation to the extent that it would (x) cause any condition to the Closing set forth herein in Sections 8.1 or 8.2 to not be satisfied or otherwise cause any breach of this Agreement. Parent willAgreement or (y) reasonably be expected to conflict with or violate the Partnership’s organizational documents or any Law, promptly upon request or result in the contravention of, or result in a violation or breach of, or default under, any Material Contract, (C) neither the Partnership nor any of the Partnership’s Subsidiaries shall be required to pay any commitment or other similar fee or, prior to the Merger 1 Effective Time, incur or assume any other liability or obligation in connection with the financings contemplated by the CompanyDebt Commitment Letter or the Debt Financing, reimburse and (D) prior to the Company Merger 2 Effective Time, none of the Partnership, the Partnership’s Subsidiaries or their respective general partners, managing members, directors, managers, officers or employees shall be required to execute, deliver or enter into, or perform any agreement, document or instrument, including any Debt Financing Agreement, with respect to the Debt Financing and the general partners, managing members, directors and managers of the Partnership’s Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained. To the extent that this Section 7.12 requires the Partnership’s cooperation with respect to any of the Parent Parties’ obligations under the Debt Commitment Letter or relating to the Debt Financing, the Partnership shall be deemed to have complied with this Section 7.12 for all reasonable purposes of Article IX of this Agreement if the Partnership has provided the Parent Parties with the assistance required under this Section 7.12 with respect to the Debt Commitment Letter and documented out-of-pocket costs the Debt Financing, in each case without giving effect to any Alternative Financing Commitment Letter or Alternative Financing. The Partnership hereby consents to the use of its and expenses (including reasonable attorneysthe Partnership’s Subsidiaries’ fees) incurred logos in connection with the debt financing contemplated by the Company Debt Commitment Letter; provided, that such logos are used solely in a manner that is not intended to, nor reasonably likely to, harm or disparage the Partnership or the Partnership’s Subsidiaries.
(b) None of the Partnership, the Partnership’s Subsidiaries and their respective partners, members, directors, managers, officers, employees, accountants, legal counsel and other Representatives shall be required to take any action that would subject such Person to actual or potential liability, to pay any commitment or other similar fee or make any other payment or incur any other liability or provide or agree to provide any indemnity in connection with the Debt Financing or their performance of its Subsidiaries in satisfying its their respective obligations under this Section 6.11.
(c) 7.12 and any information utilized in connection therewith. Parent will indemnify shall indemnify, defend and hold harmless the Company and each of its the Partnership, the Partnership’s Subsidiaries and their respective partners, members, directors, managers, officers, employees, accountants, legal counsel and other Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid suffered or payable incurred by them in connection with the Debt Financing and the performance of their respective obligations under this Section 7.12 and any information utilized in connection therewith. Parent shall, promptly upon request of the Partnership at any time after the termination of this Agreement for any reason (other than a termination of this Agreement pursuant to Section 9.1(d)), reimburse the Partnership and the Partnership’s Subsidiaries for all reasonable out-of-pocket costs and expenses incurred by the Partnership or in respect its Subsidiaries (including those of any thereofits accountants, consultants, legal counsel, agents and other Representatives) suffered or incurred in connection with any financing or the cooperation required by this Section 7.12. For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 7.12, represent the sole obligation of the Partnership, the Partnership’s Subsidiaries and their respective partners, members, directors, managers, officers, employees, accountants, legal counsel and other securities offering of Parent or its Subsidiaries or any assistance or activities provided Representatives with respect to cooperation in connection therewith; provided that Parent will have no obligation to indemnify or hold harmless any such Person to with the extent that any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are suffered or incurred as a result arrangement of the gross negligence, willful misconduct or fraud of the Company as determined by a court of competent jurisdiction in a final non-appealable verdictDebt Financing.
(d) In no event will the receipt or availability of any funds or financing (including the Debt Financing contemplated by the Debt Commitment Letter) by or to Parent or any other financing transaction be a condition to any of the obligations of Parent hereunder.
Appears in 1 contract
Sources: Purchase Agreement (Amsurg Corp)
Financing Assistance. (a) The Company willBuyer shall use its commercially reasonable efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, advisable, or proper to obtain the Debt Financing on or prior to the Closing Date. Buyer shall give Seller prompt written notice if and when ▇▇▇▇▇ becomes aware that any portion of the Debt Financing may not be available for the purposes of consummating the transactions contemplated by this Agreement. Buyer shall keep Seller informed on a reasonably current basis with reasonably detailed information about the status of ▇▇▇▇▇’s efforts to obtain the Debt Financing. Buyer shall not take any action that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated hereby, including the Debt Financing.
(b) Seller shall use its commercially reasonable efforts to cause its officials, employees, attorneys, accountants, and will cause its Subsidiaries other Representatives to provide all customary cooperation that is reasonably requested by ▇▇▇▇▇ and its Representatives toreasonably necessary to arrange for and obtain the Debt Financing, to the extent that the participation by members of management of Seller is reasonably necessary in connection therewith. Seller shall provide such commercially reasonable assistance as is customarily provided for in financings of the type contemplated by the Debt Financing, including using commercially reasonable efforts, at Buyer’s cost and expense, in (i) (A) designating one or more members of senior management of Seller to participate in, at reasonable times and upon reasonable notice, a reasonable number of investor presentations and rating agency materials and presentations and (B) assisting with the expense preparation of Parentcustomary offering documents and materials of Buyer, use its including private placement or offering memoranda, bank information memoranda, bank syndication material and their reasonable best efforts packages, and similar documents and materials, in connection with the Debt Financing (all such documents and materials, collectively, the “Offering Documents”), (ii) furnishing to provide such cooperation Buyer all ML&P Information (including execution of customary authorization and management representation letters) as may be reasonably requested by Parent, Buyer to assist Parent in arranging, obtaining or syndicating the Debt Financing, the Alternative Financing or any debt or equity financing undertaken in any form in replacement of all or any portion of such Debt Financing or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality of the foregoing, upon the reasonable request by Parent, the Company will and will cause its Subsidiaries and its Representatives to use its and their reasonable best efforts to:
(i) as promptly as reasonably practicable provide information (financial or otherwise) relating to the Company to the Financing Sources (including information to be used in the preparation of an information package regarding the businessOffering Documents, operations, financial condition, financial projections and prospects of Parent and the Company customary for the completion of such financing) to the extent reasonably requested by Parent or the Financing Sources to prepare customary offering or information documents to be used for the completion of the Debt Financing, including participation in any drafting sessions;
(ii) reasonably cooperate and assist with the due diligence, ratings agency process and marketing efforts of Parent, its Representatives and the Financing Sources, including participation by officers and other representatives, with appropriate seniority and expertise, in a reasonable number of investor meetings, presentations, sessions with ratings agencies, due diligence sessions and road shows, at times and at locations reasonably requested by Parent and upon reasonable advance notice;
(iii) providing information that is reasonably available or readily obtainable regarding Seller to assist ▇▇▇▇▇ in preparing customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, lender presentations, financial statements, private placement memoranda, prospectuses, filings with the SEC and other similar documents, including delivery of and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or the Alternative Financing of (A) audited consolidated balance sheets and related audited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended at least 75 days prior to the Closing Date (and internal control reports and audit reports for such financial statements, which will not be subject to any “going concern” qualifications), (B) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, and (C) all other historical financial and other information regarding the Company reasonably necessary to permit Parent to prepare Buyer’s pro forma financial statements required or customary for to the Debt Financing extent specified by SEC Regulation S-X, and a securities offering contemplated by the Debt Financing or the Alternative Financing;
designating, upon request, whether any such information is suitable to be made available to lenders and other investors who do not wish to receive material non-public information, (iv) make availabledesignating one or more members of senior management of Seller to participate, on a customary and at reasonable basis times and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources or as may be requested by the SEC in connection with the completion of the Debt Financing or Alternative Financing;
(v) reasonably facilitate the pledge of collateral required under the Debt Commitment Letter to be delivered and become effective at the Closing as may be reasonably requested by Parent (it being acknowledged that no such pledge may become effective other than concurrently with the Closing Date and the termination of certain of the Company’s existing financing arrangements), and assisting Parent, the Financing Sources and their respective Representatives in obtaining customary payoff letters, Lien releases, instruments of termination or discharge (in each case only to the extent such Indebtedness is required to be repaid in full on the Closing Date or in respect of which a default or event of default would arise as a result of the consummation of the transactions contemplated hereunder) and in each case to be effective upon receipt in cash of the payoff amount;
(vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with the Debt Financing or the Alternative Financing;
(vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the financial statements of the Company provided pursuant to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentation, including by providing customary representation letters, and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including by participating in any accounting due diligence sessions;
, drafting sessions, management presentations, rating agency presentations (viii) subject to customary confidentiality provisions), lender meetings (including one-on-one meetings), and one or more road shows, (v) requesting ML&P’s independent auditors to cooperate reasonably with Buyer’s independent auditors, participate in customary accounting due diligence sessions, and provide customary authorization accountant’s comfort letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors;
(ix) provide or cause to be provided and consents that are used in any customary certificates or opinions as may reasonably be requested in connection with the Debt Financing and the Alternative Financing; and
(x) provide all reasonably available information about the Company and its Subsidiaries to the extent required under applicable “know your customer” and anti-money laundering rules and regulations, including under the USA PATRIOT Act of 2001.
(b) Notwithstanding Section 6.11(a), (i) neither the Company nor any of its Subsidiaries will be required to pay any commitment or other similar fee or incur, prior to the Closing, any other liability or obligation in connection with offering document for the Debt Financing, (ii) none of the Company, its Subsidiaries or their respective officers, directors, employees or advisors will be required to execute or enter into or perform any agreement (including any opinion, solvency certificate or other deliverable) with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Closing (other than authorization letters contemplated by Section 6.11(a)(vii)) and the boards of directors or other equivalent governing bodies of the Company, Parent, Merger Sub or the Surviving Corporation will not be required to enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources pursuant to the Debt Commitment Letter that are effective prior to the Closing, (iii) nothing herein will obligate the Company or any of its Subsidiaries to provide or cause to be provided any information or take or cause to be taken any action to the extent it would result in a violation of applicable Law or such Person’s respective organizational documents, loss of any legal privilege or a default, event of default, or acceleration under, or termination of any Contract in effect on the date of this Agreement, and (iv) nothing herein will obligate the Company or any of its Subsidiaries to take any action that would (x) unreasonably interfere with the ongoing operations of the Company or its Subsidiaries or (y) cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement. Parent will, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.11.
(c) Parent will indemnify and hold harmless the Company and each of its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) suffered or incurred in connection with any financing or other securities offering of Parent or its Subsidiaries or any assistance or activities provided in connection therewith; provided that Parent will have no obligation to indemnify or hold harmless any such Person to the extent that any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are suffered or incurred as a result of the gross negligence, willful misconduct or fraud of the Company as determined by a court of competent jurisdiction in a final non-appealable verdict.
(d) In no event will the receipt or availability of any funds or financing (including the Debt Financing contemplated by the Debt Commitment Letter) by or to Parent or any other financing transaction be a condition to any of the obligations of Parent hereunder.and
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement
Financing Assistance. (a) The Company will, and will cause its Subsidiaries and its Representatives to, at the expense of Parent, use its and their reasonable best efforts to provide such cooperation as may be reasonably requested by Parent, to assist Parent in arranging, obtaining or syndicating In connection with the Debt Financing, prior to the Alternative Financing or any debt or equity financing undertaken in any form in replacement of all or any portion of such Debt Financing or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality of the foregoing, upon the reasonable request by ParentClosing, the Company will and will shall use commercially reasonable efforts to provide, or cause its Subsidiaries and its Representatives representatives to use its and their reasonable best efforts to:
(i) as promptly as reasonably practicable provide information (financial or otherwise) relating provide, to the Company to the Financing Sources (including information to be used in the preparation of an information package regarding the business, operations, financial condition, financial projections and prospects of Parent and the Company Sub, at Parent’s sole expense, customary for the completion of such financing) to the extent cooperation reasonably requested by Parent or and Sub that is necessary in connection with the Financing Sources to prepare customary offering or information documents to be used for the completion arrangement, and consummation of the Debt Financing, including participation using commercially reasonable efforts to (in any each case, to the extent reasonably requested):
(i) participate in a reasonable number of meetings, due diligence sessions, drafting sessionssessions and sessions between senior management and prospective lenders and provide financial and other information customarily required in connection with bank debt financings;
(ii) reasonably cooperate provide reasonable and assist customary assistance with the due diligencepreparation, ratings agency process execution and marketing efforts delivery of Parent, its Representatives and the Financing Sourcesdocuments customarily required in connection with bank debt financings, including participation by officers the solvency certificate, guarantee and other representativescollateral documents, with appropriate seniority and expertise, in a reasonable number facilitating the pledging of investor meetings, presentations, sessions with ratings agencies, due diligence sessions and road shows, at times and at locations reasonably requested by Parent and upon reasonable advance noticecollateral;
(iii) reasonably assist in preparing customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, lender presentations, financial statements, private placement memoranda, prospectuses, filings with the SEC provide all documentation and other similar documents, including delivery of and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or the Alternative Financing of (A) audited consolidated balance sheets and related audited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended at least 75 days prior to the Closing Date (and internal control reports and audit reports for such financial statements, which will not be subject to any “going concern” qualifications), (B) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, and (C) all other historical financial and other information regarding the Company reasonably necessary to permit Parent to prepare pro forma financial statements required or customary for the Debt Financing and a securities offering contemplated by the Debt Financing or the Alternative Financing;
(iv) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources or as may be requested by the SEC in connection with the completion of the Debt Financing or Alternative Financing;
(v) reasonably facilitate the pledge of collateral required under the Debt Commitment Letter to be delivered and become effective at the Closing as may be reasonably requested by Parent (it being acknowledged that no such pledge may become effective other than concurrently with the Closing Date and the termination of certain of the Company’s existing financing arrangements), and assisting Parent, the Financing Sources and their respective Representatives in obtaining customary payoff letters, Lien releases, instruments of termination or discharge (in each case only to the extent such Indebtedness is required to be repaid in full on the Closing Date or in respect of which a default or event of default would arise as a result of the consummation of the transactions contemplated hereunder) and in each case to be effective upon receipt in cash of the payoff amount;
(vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with the Debt Financing or the Alternative Financing;
(vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the financial statements of the Company provided pursuant to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentation, including Subsidiaries reasonably required by providing customary representation letters, and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including by participating in any accounting due diligence sessions;
(viii) subject to customary confidentiality provisions, provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors;
(ix) provide or cause to be provided any customary certificates or opinions as may reasonably be requested in connection with the Debt Financing and the Alternative Financing; and
(x) provide all reasonably available information about the Company and its Subsidiaries to the extent required bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including under the USA PATRIOT U.S.A. Patriot Act of 2001.
2001 at least three (b3) Notwithstanding Section 6.11(a), (i) neither the Company nor any of its Subsidiaries will be required to pay any commitment or other similar fee or incur, Business Days prior to the ClosingClosing Date, any in each case as reasonably requested by Parent at least seven (7) Business Days prior to the Closing Date;
(iv) assist Parent in obtaining surveys, legal opinions from local outside counsel and title insurance as reasonably requested by Parent or Sub for the Debt Financing;
(1) permit the prospective lenders involved in the Debt Financing to evaluate the Company and the Company Subsidiaries’ current assets, and cash management and accounting systems, policies and procedures relating thereto, for the purpose of establishing collateral arrangements to the extent reasonable and customary, (2) establish customary bank and other liability or obligation accounts and blocked account agreements and lock box arrangements in connection with the foregoing and (3) permit representatives of the prospective lenders to (A) conduct customary commercial field examinations, customary inventory appraisals and a customary appraisal of the Owned Real Property, and (B) make audits and appraisals delivered for purposes of any credit facility available to Parent for purposes of the Financings;
(vi) to the extent timely requested by Parent and required under the Debt FinancingFinancing Commitment Letters, obtain documents reasonably requested by Parent or its Debt Financing Sources relating to the repayment of the existing indebtedness of the Company and the Company Subsidiaries and the release of related liens, including customary payoff letters in form and substance satisfactory to Parent;
(iivii) none cause the taking of corporate and other actions by the Company and its Subsidiaries reasonably necessary to permit the consummation of the Debt Financing on the Closing Date, it being understood that no such corporate or other action will take effect prior to the Closing and the Company Board will not approve the Financing prior to the Closing Date;
(viii) provide financial statements for quarter ended on July 1, 2017 as promptly as possible after the date thereof, but in no event later than July 24, 2017; 42
(ix) prevent the issuance, offer, placement, or arrangement of any debt securities or commercial bank or other credit facilities (excluding the indebtedness and/or obligations contemplated by or otherwise permitted under the Debt Financing Commitment Letters) by or on behalf of the Company or any of its Subsidiaries; and
(x) supplement the written information (other than information of a general economic or industry-specific nature) concerning the Company, its Subsidiaries or their respective officers, directors, employees or advisors will be required to execute or enter into or perform any agreement (including any opinion, solvency certificate or other deliverable) with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Closing (other than authorization letters transactions contemplated by Section 6.11(a)(vii)) and the boards of directors or other equivalent governing bodies of the Company, Parent, Merger Sub or the Surviving Corporation will not be required to enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources pursuant to the Debt Commitment Letter that are effective prior to the Closing, (iii) nothing herein will obligate the Company or any of its Subsidiaries to provide or cause to be provided any information or take or cause to be taken any action to the extent it would result in a violation of applicable Law or such Person’s respective organizational documents, loss of any legal privilege or a default, event of default, or acceleration under, or termination of any Contract in effect on the date of this Agreement, and (iv) nothing herein will obligate the Company or any of its Subsidiaries to take any action that would (x) unreasonably interfere with the ongoing operations of the Company or its Subsidiaries or (y) cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement. Parent will, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.11.
(c) Parent will indemnify and hold harmless the Company and each of its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) suffered or incurred in connection with any financing or other securities offering of Parent or its Subsidiaries or any assistance or activities provided in connection therewith; provided that Parent will have no obligation to indemnify or hold harmless any such Person hereby to the extent that any such liabilitiesinformation contains any material misstatement of fact or omits to state any material fact necessary to make such information, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are suffered or incurred taken as a result of the gross negligencewhole, willful misconduct or fraud of the Company as determined by a court of competent jurisdiction not misleading in a final non-appealable verdictany material respect promptly after gaining knowledge thereof.
(d) In no event will the receipt or availability of any funds or financing (including the Debt Financing contemplated by the Debt Commitment Letter) by or to Parent or any other financing transaction be a condition to any of the obligations of Parent hereunder.
Appears in 1 contract
Sources: Merger Agreement
Financing Assistance. (a) The Prior to the Closing, the Company willshall, and will cause its Subsidiaries and its Representatives to, at the expense of Parent, shall use its and their reasonable best efforts to cause each of its Subsidiaries to, provide such cooperation as may be reasonably requested by Parent, to assist Parent in arranging, obtaining or syndicating connection with the arrangement of the Debt Financing, or if applicable, the Alternative Financing or any debt or equity financing undertaken in any form in replacement of all or any portion of such Debt Financing or Alternative Financing or otherwise for (provided that such requested cooperation does not unreasonably interfere with the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality operations of the foregoing, upon the reasonable request by Parent, the Company will and will cause its Subsidiaries and its Representatives to use its and their Subsidiaries), including using reasonable best efforts to:
to (i) as promptly as reasonably practicable provide information (financial or otherwise) relating furnish to the Company to Parent and Merger Sub and the Financing Sources all Required Information, (including information ii) participate in a reasonable number of meetings, presentations, due diligence sessions with the Financing Sources and cooperate reasonably with the Financing Sources' due diligence, to be used in the preparation of an information package regarding the business, operations, financial condition, financial projections extent customary and prospects of Parent and the Company customary reasonable for the completion of such financingDebt Financing, (iii) to the extent reasonably requested by Parent or customary and in accordance with applicable Law, facilitate the Financing Sources to prepare customary offering or information providing of guarantees and granting of a security interest (and perfection thereof) in and pledge of collateral and assist in the preparation of, and executing and delivery at the Closing, any definitive documents to be used for the completion of the Debt Financing, including participation in any drafting sessions;
(ii) reasonably cooperate and assist with the due diligencecredit agreements, ratings agency process and marketing efforts of Parentindentures, its Representatives and the Financing Sourcesnotes, including participation by officers security documents, guarantees, mortgages, certificates, and other representativesdefinitive agreements, with appropriate seniority and expertise, in a reasonable number of investor meetings, presentations, sessions with ratings agencies, due diligence sessions and road shows, at times and at locations reasonably requested by Parent and upon reasonable advance notice;
(iii) reasonably assist in preparing customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, lender presentations, financial statements, private placement memoranda, prospectuses, filings with the SEC and other similar documents, including delivery of and consenting to the inclusion documents or incorporation in any SEC filing instruments related to the Debt Financing or the Alternative Financing of (A) audited consolidated balance sheets Financing, if applicable and related audited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended at least 75 days prior to the Closing Date (and internal control reports and audit reports for such financial statements, which will not be subject to any “going concern” qualifications), (B) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, and (C) all other historical financial and other information regarding the Company reasonably necessary to permit Parent to prepare pro forma financial statements required or customary for the Debt Financing and a securities offering contemplated by the Debt Financing or the Alternative Financing;
(iv) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, provided that no such definitive documents in this clause (iii) shall be effective until the Effective Time, (iv) using reasonable best efforts to obtain a certificate of the chief financial officer or person performing similar functions of the Company with respect to solvency matters to the extent reasonably required by the Financing Sources or as may be requested by the SEC in connection with the completion of the Debt Financing or Alternative Financing;
Commitment Letter, (v) reasonably facilitate the pledge of collateral required under the Debt Commitment Letter to be delivered and become effective at the Closing as may be reasonably requested by Parent (it being acknowledged that no such pledge may become effective other than concurrently with the Closing Date and the termination of certain of the Company’s existing financing arrangements), and assisting Parent, the Financing Sources and their respective Representatives in obtaining arranging for customary payoff letters, Lien releases, lien terminations and instruments of termination or discharge (in each case only to the extent such Indebtedness is required to be repaid in full delivered at or prior to Closing relating to all Indebtedness to be paid off, discharged and terminated on the Closing Date or in respect of which a default or event of default would arise as a result of the consummation of the transactions contemplated hereunder) Date, and in each case to be effective upon receipt in cash of the payoff amount;
(vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with the Debt Financing or the Alternative Financing;
(vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the financial statements of the Company provided pursuant to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentation, including furnish all documentation and other information required by providing customary representation letters, and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including by participating in any accounting due diligence sessions;
(viii) subject to customary confidentiality provisions, provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors;
(ix) provide or cause to be provided any customary certificates or opinions as may reasonably be requested in connection with the Debt Financing and the Alternative Financing; and
(x) provide all reasonably available information about the Company and its Subsidiaries to the extent required Governmental Authorities under applicable “"know your customer” and ", anti-money laundering laundering, anti-terrorism, foreign corrupt practices and similar laws, rules and regulationsregulations of all applicable jurisdictions related to the Debt Financing, including under the USA PATRIOT Act United States, Cayman Islands and PRC, provided that the information provided hereunder shall be subject to the terms of 2001.
(b) Notwithstanding Section 6.11(a), (i) neither the Confidentiality Agreement. Neither the Company nor any of its Subsidiaries will shall be required required, under the provisions of this Section 6.08 or otherwise in connection with any Debt Financing, (x) to pay any commitment or other similar fee or incur, prior to the ClosingEffective Time, (y) to incur any expense unless such expense is reimbursed by Parent promptly after incurrence thereof, or (z) to take, or commit to taking, any other liability or obligation in connection with the Debt Financing, (ii) none of the Company, its Subsidiaries or their respective officers, directors, employees or advisors will be required to execute or enter into or perform any agreement (including any opinion, solvency certificate or other deliverable) with respect to the Debt Financing action that is not contingent upon the Closing occurring or that would be effective subject it to actual or potential liability prior to the Closing (other than authorization letters contemplated by Section 6.11(a)(vii)) and Effective Time. Parent shall promptly, upon the boards of directors or other equivalent governing bodies of the Company, Parent, Merger Sub or the Surviving Corporation will not be required to enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources pursuant to the Debt Commitment Letter that are effective prior to the Closing, (iii) nothing herein will obligate the Company or any of its Subsidiaries to provide or cause to be provided any information or take or cause to be taken any action to the extent it would result in a violation of applicable Law or such Person’s respective organizational documents, loss of any legal privilege or a default, event of default, or acceleration under, or termination of any Contract in effect on the date of this Agreement, and (iv) nothing herein will obligate the Company or any of its Subsidiaries to take any action that would (x) unreasonably interfere with the ongoing operations of the Company or its Subsidiaries or (y) cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement. Parent will, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying connection with the cooperation of the Company and its obligations under Subsidiaries contemplated by this Section 6.11.
(c) Parent will 6.08 and shall indemnify and hold harmless the Company and each of Company, its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid liabilities or payable losses suffered or incurred by any of them in connection with the arrangement of the Debt Financing, or in respect of if applicable, the Alternative Debt Financing, and any thereof) suffered or incurred information used in connection therewith (except with respect to any financing information provided by or other securities offering on behalf of Parent the Company or any of its Subsidiaries), except in the event such liabilities or losses arose out of or result from the willful misconduct of the Company, its Subsidiaries or any assistance or activities provided in connection therewith; provided that Parent will have no obligation to indemnify or hold harmless any such Person to the extent that any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are suffered or incurred as a result of the gross negligence, willful misconduct or fraud of the Company as determined by a court of competent jurisdiction in a final non-appealable verdicttheir respective Representatives.
(d) In no event will the receipt or availability of any funds or financing (including the Debt Financing contemplated by the Debt Commitment Letter) by or to Parent or any other financing transaction be a condition to any of the obligations of Parent hereunder.
Appears in 1 contract
Sources: Merger Agreement (Mindray Medical International LTD)
Financing Assistance. (a) The Company willBuyer shall use its commercially reasonable efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, advisable, or proper to obtain the Debt Financing on or prior to the Closing Date. Buyer shall give Seller prompt written notice if and when Buyer becomes aware that any portion of the Debt Financing may not be available for the purposes of consummating the transactions contemplated by this Agreement. Buyer shall keep Seller informed on a reasonably current basis with reasonably detailed information about the status of Buyer’s efforts to obtain the Debt Financing. Buyer shall not take any action that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated hereby, including the Debt Financing.
(b) Seller shall use its commercially reasonable efforts to cause its officials, employees, attorneys, accountants, and will cause its Subsidiaries other Representatives to provide all customary cooperation that is reasonably requested by Buyer and its Representatives toreasonably necessary to arrange for and obtain the Debt Financing, to the extent that the participation by members of management of Seller is reasonably necessary in connection therewith. Seller shall provide such commercially reasonable assistance as is customarily provided for in financings of the type contemplated by the Debt Financing, including using commercially reasonable efforts, at Buyer’s cost and expense, in (i) (A) designating one or more members of senior management of Seller to participate in, at reasonable times and upon reasonable notice, a reasonable number of investor presentations and rating agency materials and presentations and (B) assisting with the expense preparation of Parentcustomary offering documents and materials of Buyer, use its including private placement or offering memoranda, bank information memoranda, bank syndication material and their reasonable best efforts packages, and similar documents and materials, in connection with the Debt Financing (all such documents and materials, collectively, the “Offering Documents”), (ii) furnishing to provide such cooperation Buyer all ML&P Information (including execution of customary authorization and management representation letters) as may be reasonably requested by Parent, Buyer to assist Parent in arrangingthe preparation of the Offering Documents, obtaining (iii) providing information that is reasonably available or syndicating readily obtainable regarding Seller to assist Buyer in preparing Buyer’s pro forma financial statements to the extent specified by SEC Regulation S-X, and designating, upon request, whether any such information is suitable to be made available to lenders and other investors who do not wish to receive material non-public information, (iv) designating one or more members of senior management of Seller to participate, at reasonable times and upon reasonable notice, in due diligence sessions, drafting sessions, management presentations, rating agency presentations (subject to customary confidentiality provisions), lender meetings (including one-on-one meetings), and one or more road shows, (v) requesting ML&P’s independent auditors to cooperate reasonably with Buyer’s independent auditors, participate in customary accounting due diligence sessions, and provide customary accountant’s comfort letters and consents that are used in any offering document for the Debt Financing, the Alternative Financing or any debt or equity financing undertaken in any form in replacement of all or any portion of such Debt Financing or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality of the foregoing, upon the reasonable request by Parent, the Company will and will cause its Subsidiaries and its Representatives to use its and their reasonable best efforts to:
(ivi) as promptly as reasonably practicable provide information (financial or otherwise) relating to the Company to the Financing Sources (including information to be used assisting in the preparation of an information package regarding of, and executing and delivering at the businessClosing, operations, financial condition, financial projections and prospects of Parent and the Company customary for the completion of such financing) to the extent reasonably requested by Parent or the Financing Sources to prepare customary offering or information definitive documents to be used for the completion of the Debt Financing, including participation in any drafting sessions;
(ii) reasonably cooperate and assist with the due diligence, ratings agency process and marketing efforts of Parent, its Representatives and the Financing Sources, including participation by officers and other representatives, with appropriate seniority and expertise, in a reasonable number of investor meetings, presentations, sessions with ratings agencies, due diligence sessions and road shows, at times and at locations reasonably requested by Parent and upon reasonable advance notice;
(iii) reasonably assist in preparing customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, lender presentations, financial statements, private placement memoranda, prospectuses, filings with the SEC and other similar documents, including delivery of and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or the Alternative Financing of and other customary certificates and documents as may be reasonably requested by Buyer.
(Ac) audited consolidated balance sheets and related audited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended at least 75 days prior Notwithstanding anything to the Closing Date contrary contained in this Section 6.13, nothing in this Section 6.13 shall require any such cooperation to the extent that it would (and internal control reports and audit reports for such financial statementsi) require Seller to pay any commitment or other fees, which will not be subject reimburse any expenses or otherwise incur any liabilities or give any indemnities, (ii) unreasonably interfere with the Business, (iii) require Seller to enter into or approve any agreement or other documentation or agree to any “going concern” qualifications)change or modification of any existing agreement or other documentation, (Biv) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, and (C) all other historical financial and other information regarding the Company reasonably necessary to permit Parent require Seller to prepare pro forma financial statements required or customary for the Debt Financing and a securities offering contemplated by pro forma adjustments reflecting the Debt Financing or the Alternative transactions contemplated by this Agreement (provided that Seller shall otherwise cooperate with the preparation of such pro forma financial statements and pro forma adjustments prepared by Buyer), (v) require Seller to approve or authorize the Debt Financing;
, or (ivvi) make availablerequire Seller to cause the delivery of (A) legal opinions or reliance letters or any certificate as to solvency or any other certificate necessary for the Debt Financing, on a other than accountants’ customary and reasonable basis and upon reasonable noticecomfort letters as contemplated by clause (v) of Section 6.13(b), appropriate personnel(B) any audited financial information or any financial information prepared in accordance with Regulation S-K or Regulation S-X under the Securities Act of 1933, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiariesor any financial information, in each case, as may be reasonably requested in a form not customarily prepared by ParentSeller with respect to any period (provided, that for the avoidance of doubt, the Financing Sources foregoing clause (B) shall not be relied upon to prevent Seller from delivering its year-end audited financial statements or as may be requested by the SEC in connection with the completion of the Debt Financing or Alternative Financing;
(v) reasonably facilitate the pledge of collateral required under the Debt Commitment Letter to be delivered and become effective at the Closing as may be reasonably requested by Parent (it being acknowledged that no such pledge may become effective other than concurrently with the Closing Date and the termination of certain of the Company’s existing financing arrangements), and assisting Parent, the Financing Sources and their respective Representatives in obtaining customary payoff letters, Lien releases, instruments of termination or discharge (in each case only quarterly unaudited financial statements to the extent such Indebtedness is otherwise required to be repaid by this Agreement or assisting Buyer reasonably in full on the Closing Date preparing necessary information) or in respect of which a default or event of default would arise as a result of the consummation of the transactions contemplated hereunder(C) and in each case to be effective upon receipt in cash of the payoff amount;
(vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with the Debt Financing or the Alternative Financing;
(vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion or incorporation of their audit reports financial information with respect to a month or fiscal period that has not yet ended or that has ended less than 90 days, or less than 210 days in the financial statements case of the Company provided pursuant to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentation, including by providing customary representation letters, and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including by participating in any accounting due diligence sessions;
(viii) subject to customary confidentiality provisions, provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors;
(ix) provide or cause to be provided any customary certificates or opinions as may reasonably be requested in connection with the Debt Financing and the Alternative Financing; and
(x) provide all reasonably available information about the Company and its Subsidiaries to the extent required under applicable “know your customer” and anti-money laundering rules and regulations, including under the USA PATRIOT Act of 2001.
(b) Notwithstanding Section 6.11(a), (i) neither the Company nor any of its Subsidiaries will be required to pay any commitment or other similar fee or incuran annual period, prior to the Closing, any other liability or obligation in connection with the Debt Financing, (ii) none of the Company, its Subsidiaries or their respective officers, directors, employees or advisors will be required to execute or enter into or perform any agreement (including any opinion, solvency certificate or other deliverable) with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Closing (other than authorization letters contemplated by Section 6.11(a)(vii)) and the boards of directors or other equivalent governing bodies of the Company, Parent, Merger Sub or the Surviving Corporation will not be required to enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources pursuant to the Debt Commitment Letter that are effective prior to the Closing, (iii) nothing herein will obligate the Company or any of its Subsidiaries to provide or cause to be provided any information or take or cause to be taken any action to the extent it would result in a violation of applicable Law or such Person’s respective organizational documents, loss of any legal privilege or a default, event of default, or acceleration under, or termination of any Contract in effect on the date of this Agreement, and such request.
(ivd) nothing herein will obligate the Company or any of its Subsidiaries to take any action that would Buyer shall (xi) unreasonably interfere with the ongoing operations of the Company or its Subsidiaries or (y) cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement. Parent will, promptly upon request by the Company, reimburse the Company Seller for all reasonable and documented out-of-pocket costs and or expenses (including reasonable attorneys’ feesand documented costs and expenses of counsel and accountants) incurred by the Company Seller or any of its Subsidiaries Representatives in satisfying its obligations under connection with any cooperation provided for in this Section 6.11.
6.13, and (cii) Parent will indemnify and hold harmless the Company Seller and each and all of its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) suffered or incurred in connection with any financing or other securities offering of Parent or its Subsidiaries or any assistance or activities provided in connection therewith; provided that Parent will have no obligation to indemnify or hold harmless any such Person to the extent that any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are suffered or Losses incurred as a result Asset Purchase and Sale Agreement dated as of the gross negligenceDecember 28, willful misconduct 2018 between Municipality of Anchorage and Chugach Electric Association, Inc. of, or fraud of the Company as determined by a court of competent jurisdiction in a final non-appealable verdict.
(d) In no event will the receipt connection with, any cooperation provided for in this Section 6.13 or availability of any funds or financing (including the Debt Financing contemplated by and any information used in connection therewith, unless Seller acted in bad faith or with gross negligence and other than in the Debt Commitment Letter) by or to Parent or any other financing transaction be a condition to any case of the obligations of Parent hereunderfraud.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Chugach Electric Association Inc)
Financing Assistance. (a) The Prior to the Closing, the Company willshall, and will shall cause its Subsidiaries and its Representatives to, at the expense of Parent, use its and their commercially reasonable best efforts to provide such cooperation that is customary as may be reasonably requested by Parent, Parent to assist Parent in arranging, obtaining or syndicating the Debt Financing, debt financing provided by the Alternative Financing Bridge Facility Agreement (or any financing intended to replace or refinance the debt or equity financing undertaken in any form in replacement of all provided by the Bridge Facility Agreement) or any portion of such Debt Financing other third party debt financing necessary or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality of the foregoing, upon the reasonable request incurred by Parent, any wholly owned Subsidiary of Parent or any Merger Sub to consummate the transactions contemplated hereby (the “Debt Financing”) (provided, that such requested cooperation does not unreasonably interfere with the ongoing business or operations of the Company will and will cause its Subsidiaries and or require the Company or any of its Representatives Subsidiaries to use its and their waive or amend any terms of this Agreement), including using commercially reasonable best efforts to:
(i) as promptly as reasonably practicable provide information (financial cooperate with the customary marketing efforts or otherwise) relating to the Company to the Financing Sources (including information to be used in the preparation of an information package regarding the business, operations, financial condition, financial projections and prospects due diligence efforts of Parent and the Company customary for the completion of such financing) to the extent reasonably requested by Parent in connection with all or the Financing Sources to prepare customary offering or information documents to be used for the completion any portion of the Debt Financing, including participation making available members of the management team with appropriate seniority and expertise to assist in any preparation for and to participate in a mutually agreed number (on reasonable notice) of meetings, presentations, road shows, due diligence sessions, drafting sessions;sessions and sessions with proposed lenders, underwriters, initial purchasers, placement agents, investors and rating agencies,
(ii) reasonably cooperate and assist with the due diligence, ratings agency process and marketing efforts of Parent, its Representatives and the Financing Sources, including participation by officers and other representatives, with appropriate seniority and expertise, in a on reasonable number of investor meetings, presentations, sessions with ratings agencies, due diligence sessions and road shows, at times and at locations reasonably requested by Parent and upon reasonable advance notice;
(iii) reasonably assist in preparing notice comment on customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, bank information memoranda, lender and investor presentations, financial road show materials, confidential information memoranda, registration statements, prospectuses, prospectus supplements, private placement memoranda, prospectuses, filings and similar documents customarily required in connection with the SEC and other similar documentsDebt Financing, including delivery of the marketing and consenting syndication thereof,
(iii) cause the Company’s independent accountants and/or auditors to provide customary cooperation with the Debt Financing,
(iv) (I) to the inclusion or incorporation in extent customary for Parent to prepare marketing materials for any SEC filing related to the Debt Financing or of the Alternative applicable type, furnish Parent and the applicable Financing of Sources with (A) audited consolidated balance sheets and related audited statements of incomeoperations, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended at least 75 more than sixty (60) days prior to the Closing Date (and internal control reports and audit reports for such financial statements, which will not be subject to any “going concern” qualifications)Date, (B) unaudited consolidated balance sheets and related unaudited consolidated statements of incomeoperations, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter interim quarterly period ended at least 45 more than 40 days prior to the Closing Date, in the case of each of clauses (I)(A) and (I)(B), prepared in accordance with GAAP, and (C) all if the Parent is pursuing a registered public offering of debt securities and has notified the Company of such election, such other historical financial and other information regarding of the Company reasonably type required by Regulation S-X and Regulation S-K under the 1933 Act in each case that is customary for such offering or as otherwise necessary to permit the Company’s independent accountants and/or auditors to issue customary “comfort letters” to Parent’s Financing Sources in connection with such offering, including as to customary negative assurances required to consummate such offering (it being understood that the Company need only to provide information to assist the Parent to prepare in the preparation of pro forma financial statements information, and shall not in any event be required to provide pro forma financial statements, projections or customary for the Debt Financing pro forma adjustments), and a securities offering contemplated by the Debt Financing or the Alternative Financing;
(ivII) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company furnish Parent and its Subsidiaries, documents and Financing Sources with such other customary information relating to the Company and its Subsidiaries, in each case, as may be Subsidiaries that is reasonably requested by Parent, Parent and is customarily required in marketing materials for Debt Financings of the applicable type.
(v) provide to Parent and the Financing Sources promptly all documentation and other information about the Company and its Subsidiaries required by the Financing Sources or as may be requested by the SEC in connection regulatory authorities with the completion of respect to the Debt Financing or Alternative Financing;
(v) reasonably facilitate under applicable “know your customer” and anti-money laundering rules and regulations, including the pledge of collateral PATRIOT Act, that is required under the any Debt Commitment Letter to be delivered and become effective at the Closing as may be reasonably requested by Parent (it being acknowledged that no such pledge may become effective other than concurrently with the Closing Date and the termination of certain of the Company’s existing financing arrangements), and assisting Parent, the Financing Sources and their respective Representatives in obtaining customary payoff letters, Lien releases, instruments of termination or discharge (in each case only to the extent such Indebtedness documentation and other information is required requested in writing to be repaid in full on the Company at least ten Business Days prior to the Closing Date or in respect of which a default or event of default would arise as a result of the consummation of the transactions contemplated hereunder) and in each case to be effective upon receipt in cash of the payoff amount;Date,
(vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with the Debt Financing or the Alternative Financing;
(vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the financial statements of the Company provided pursuant to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentation, including by providing customary representation letters, and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including by participating in any accounting due diligence sessions;
(viii) subject to customary confidentiality provisionsprovisions and disclaimers, provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors;,
(ixvii) provide or cause to be provided any customary certificates or opinions as may reasonably be requested facilitate the payoff, discharge and termination in connection full substantially concurrently with the Debt Financing and the Alternative Financing; and
(x) provide all reasonably available information about the Company and its Subsidiaries to the extent required under applicable “know your customer” and anti-money laundering rules and regulations, including Closing of obligations outstanding under the USA PATRIOT Act Credit Agreement (including, without limitation, using commercially reasonable efforts to facilitate the calculation of 2001.
the amounts required to effect the payoff and termination of the Credit Agreement in full at Closing no less than three Business Days prior thereto); provided that (b) Notwithstanding Section 6.11(a), (iA) neither the Company nor any of its Subsidiaries will shall have any obligation to make any payment in respect of the foregoing unless and until the Closing occurs and it being understood that at the Closing, Parent and its Subsidiaries shall provide the Company and its Subsidiaries with the funds necessary for the Company to actually effect such payoff and termination and (B) no such action shall be required unless it can be and is conditioned on the occurrence of the Closing, and
(viii) consent to the reasonable use of trademarks and logos of the Company or any of its Subsidiaries in connection with the Debt Financing; provided, that such trademarks and logos are used solely in a manner that is not intended to or is reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries.
(b) The foregoing notwithstanding, neither the Company nor any of its Subsidiaries shall be required to (i) take or permit the taking of any action pursuant to Section 6.03(a) that (A) would require the Company, its Subsidiaries or any Persons who are directors or officers of the Company or its Subsidiaries to enter into or approve any definitive financing or purchase agreement for the Debt Financing effective prior to the Closing, pass resolutions or consents to approve or authorize the execution of the Debt Financing, execute or deliver any certificate, document, instrument or agreement or agree to any change or modification of any existing certificate, document, instrument or agreement, in each case, that is effective prior to the Closing, or that would be effective if the Closing does not occur (other than customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors); (B) would cause any representation or warranty in this Agreement to be breached by the Company or any of its Subsidiaries (unless waived by Parent); (C) would require the Company or any of its Subsidiaries to pay any commitment or other similar fee or incur, prior to the Closing, Closing or incur any other expense, liability or obligation in connection with the Debt FinancingFinancing prior to the Closing; (D) could reasonably be expected to cause any director, officer or employee or stockholder of the Company or any of its Subsidiaries to incur any personal liability in their capacity as such; (E) conflict with the organizational documents of the Company or its Subsidiaries or any Applicable Law; or (F) could reasonably be expected to result in a material violation or breach of, or a default (with or without notice, lapse of time, or both) under, any Contract to which the Company or any of its Subsidiaries is a party; (ii) none provide access to or disclose information that the Company or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of the Company, Company or any of its Subsidiaries Subsidiaries; (iii) prepare (A) any IFRS financial statements or their respective officers, directors, employees reconciliations or advisors will be required otherwise provide financial information in a format other than in accordance with GAAP or (B) any other financial statements or information that are not reasonably available to execute it or that are not capable of being prepared by it without undue burden or otherwise with the use of commercially reasonable efforts; (iv) enter into any instrument or perform any agreement (including any opinion, solvency certificate or other deliverable) with respect to the Debt Financing that is not contingent upon effective prior to the occurrence of the Closing occurring or that would be effective prior to if the Closing does not occur; or (other than authorization letters contemplated by Section 6.11(a)(vii)v) and the boards prepare any projections or pro forma financial statements; or (vi) deliver or cause to be delivered any opinion of directors or other equivalent governing bodies of the Company, Parent, Merger Sub or the Surviving Corporation will not be required to enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources pursuant to counsel in connection with the Debt Commitment Letter that are effective prior to the Closing, (iii) nothing herein will obligate Financing. Nothing contained in this Section 6.03 or otherwise shall require the Company or any of its Subsidiaries Subsidiaries, prior to provide or cause the Closing, to be provided any information an issuer or take or cause to be taken any action other obligor with respect to the extent it would result in Debt Financing.
(c) Parent and Merger Subs shall, on a violation of applicable Law or such Person’s respective organizational documents, loss of any legal privilege or a default, event of default, or acceleration under, or termination of any Contract in effect on the date of this Agreement, joint and (iv) nothing herein will obligate the Company or any of its Subsidiaries to take any action that would (x) unreasonably interfere with the ongoing operations of the Company or its Subsidiaries or (y) cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement. Parent willseveral basis, promptly upon on written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in connection with the Debt Financing or satisfying its obligations under this Section 6.11.
6.03, whether or not the Mergers are consummated or this Agreement is terminated (c) excluding, for the avoidance of doubt, the costs of the preparation of any annual or quarterly financial statements of the Company to the extent prepared in the ordinary course of its financial reporting practice). Parent will and Merger Subs shall, on a joint and several basis, indemnify and hold harmless the Company and each of its Subsidiaries and their respective Representatives from and against any and all liabilitieslosses, lossesclaims, damages, claimsliabilities, reasonable out-of-pocket costs, expensesreasonable out-of-pocket attorneys’ fees, interestjudgments, awardsfines, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) suffered or incurred in connection with the Debt Financing or otherwise in connection with any financing or other securities offering action taken by the Company, any of Parent or its Subsidiaries or any assistance of their respective Representatives pursuant to this Section 6.03 (other than the use of any information provided by the Company, any of its Subsidiaries or activities provided any of their respective Representatives in writing for use in connection therewith; provided that Parent will have no obligation to indemnify with the Debt Financing) whether or hold harmless any not the Mergers are consummated or this Agreement is terminated, except in the event such Person to the extent that any such liabilitieslosses, lossesclaims, damages, claimsliabilities, costsreasonable out-of-pocket costs reasonable out-of-pocket attorneys’ fees, expensesjudgments, fines, penalties and amounts paid in settlement (including all interest, awards, judgments assessments and penalties are suffered other charges paid or incurred as a payable in connection with or in respect of any thereof) arise out of or result of from the gross negligence, negligence or willful misconduct or fraud of the Company as determined by a court of competent jurisdiction or its Subsidiaries in a final non-appealable verdictfulfilling their obligations pursuant to this Section 6.03.
(d) In Anything to the contrary in this Agreement notwithstanding,(i) the parties hereto acknowledge and agree that the provisions contained in this Section 6.03 represent the sole obligation of the Company, its Subsidiaries and their respective Representatives with respect to cooperation in connection with the arrangement of any financing (including the Debt Financing) to be obtained by Parent, Bidco or either Merger Sub with respect to the transactions contemplated by this Agreement and no event will other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or modify such obligations; (ii) the Company’s breach of any of the covenants required to be performed by it under this Section 6.03 shall not be considered in determining the satisfaction of the condition set forth in Section 9.02(a) unless such breach is the primary cause of, or primarily resulted in, Parent being unable to consummate the Mergers; and (iii) the receipt or and availability of any funds or financing (including is not a condition to Closing under this Agreement nor is it a condition to Closing under this Agreement for Parent to obtain all or any portion of the Debt Financing contemplated by the Debt Commitment Letter) by or to Parent or any other financing transaction financing.
(e) All confidential information provided by Company, its Subsidiaries and their respective Representatives shall be a condition kept confidential in accordance with the Confidentiality Agreement, except that Parent shall be permitted to disclose such information as applicable to any number of Financing Sources as would be reasonable and customary in connection with any financing; provided, that all confidential information shared with Financing Sources shall be kept confidential and otherwise treated in accordance with the Confidentiality Agreement or other confidentiality obligations that are substantially similar to those contained in the Confidentiality Agreement (which, with respect to the Financing Sources, may be satisfied by the confidentiality provisions applicable thereto under the Bridge Facility Agreement or other customary confidentiality undertakings in the context of Parent hereundercustomary syndication practices from Financing Sources not party to the Bridge Facility Agreement).
Appears in 1 contract
Sources: Merger Agreement (Astrazeneca PLC)
Financing Assistance. (a) The Company will, and will cause its Subsidiaries and its Representatives to, at the expense of Parent, agrees to use its and their reasonable best efforts to deliver to Parent and the Debt Financing Sources the Required Information upon such information becoming available (it being understood that (A) to the extent any Required Information is contained in any Company Reports, such inclusion shall constitute delivery to Parent and Merger Sub hereunder and (B) notwithstanding anything to the contrary, in no circumstances shall the Company be required to provide such cooperation as may any financial statements hereunder that are not required to be reasonably requested by Parentincluded in any Company Reports, including any Company Reports filed after the date hereof), and in addition, to assist Parent in arranginguse reasonable best efforts to provide, obtaining or syndicating the Debt Financing, the Alternative Financing or any debt or equity financing undertaken in any form in replacement of all or any portion of such Debt Financing or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality of the foregoing, upon the shall use its reasonable request by Parent, the Company will and will best efforts to cause its Subsidiaries to and its Representatives to use cause its and their respective Representatives, including legal and accounting, to use reasonable best efforts to provide, to Parent and the Debt Financing Sources, at Parent’s sole cost and expense (other than in respect of the Required Information), all customary cooperation reasonably requested in writing by Parent and the Debt Financing Sources to cause the conditions in the Debt Commitment Letter to be satisfied or as otherwise reasonably requested, in each case, solely with respect to information regarding the Company and its Subsidiaries, in connection with the Financing, including using its reasonable best efforts to:
: (i) as promptly as reasonably practicable provide information (financial or otherwise) relating to the Company to the Financing Sources (including information upon reasonable prior notice and at times and locations to be used in the preparation of an information package regarding the businessmutually agreed, operations, financial condition, financial projections and prospects of Parent and the Company customary for the completion of such financing) to the extent reasonably requested by Parent or the Financing Sources to prepare customary offering or information documents to be used for the completion of the Debt Financing, including participation in any drafting sessions;
(ii) reasonably cooperate and assist with the due diligence, ratings agency process and marketing efforts of Parent, its Representatives and the Financing Sources, including participation by officers and other representatives, with appropriate seniority and expertise, participate in a reasonable number of investor meetings, presentations, sessions with ratings agenciesroad shows, due diligence sessions and sessions with rating agencies; provided that the Company and its Representatives shall not be required to participate in more than one road shows, at times and at locations reasonably requested by show or similar meeting in respect of marketing bond offerings; (ii) deliver to Parent and upon reasonable advance notice;
(iii) reasonably assist in preparing customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, lender presentations, financial statements, private placement memoranda, prospectuses, filings with the SEC and other similar documents, including delivery of and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or the Alternative Financing of (A) audited consolidated balance sheets and related audited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended at least 75 days prior Sources from time to the Closing Date (and internal control reports and audit reports for time such financial statements, which will not be subject to any “going concern” qualifications), (B) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, and (C) all other historical financial and other information regarding the Company reasonably necessary to permit Parent to prepare pro forma financial statements required or customary for the Debt Financing and a securities offering contemplated by the Debt Financing or the Alternative Financing;
(iv) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, Subsidiaries as may be reasonably requested required by ParentParent in the preparation of materials by Parent for rating agency presentations, the Financing Sources or as may be requested by the SEC offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the completion Financing, and reasonably cooperate with updating and correcting any Required Information in order to ensure such Required Information remains Compliant; (iii) assist Parent and the Debt Financing Sources in their preparation of offering documents for any portion of the Debt Financing or Alternative Financing;
(v) reasonably facilitate , including identifying any portion of the pledge of collateral required under information that constitutes material, non-public information, and including delivering customary representation and authorization letters with respect to and in accordance with the Debt Commitment Letter to be delivered and become effective at the Closing as may be reasonably requested by Parent Letter, including materials for ratings agency presentations; (it being acknowledged that no such pledge may become effective other than concurrently iv) cooperate with the Closing Date and the termination of certain of the Company’s existing financing arrangements), and assisting Parent, the Financing Sources and their respective Representatives marketing (including cooperating in obtaining customary payoff letters, Lien releases, instruments of termination or discharge (in each case only to the extent such Indebtedness is required to be repaid in full on the Closing Date or in respect of which a default or event of default would arise as a result of the consummation of the transactions contemplated hereunderratings) and in each case to be effective upon receipt in cash due diligence efforts of Parent and the payoff amount;
(vi) obtain any necessary consents from the Company’s independent public accounting firm Debt Financing Sources in connection with the Debt Financing Financing; (v) to the extent requested at least ten business days prior to the Closing, furnish Parent or the Alternative Financing;
(vii) Debt Financing Sources at least three business days prior to the Closing with all documentation and other information as reasonably requested by the Debt Financing Sources that is required in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the financial statements of the Company provided pursuant to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentation, including by providing customary representation letters, and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including by participating in any accounting due diligence sessions;
(viii) subject to customary confidentiality provisions, provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors;
(ix) provide or cause to be provided any customary certificates or opinions as may reasonably be requested in connection with the Debt Financing and the Alternative Financing; and
(x) provide all reasonably available information about the Company and its Subsidiaries to the extent required under applicable “know your customer”, “beneficial ownership” and anti-money laundering rules and regulations; (vi) assist in facilitating the granting of a security interest (and perfection thereof) in collateral (provided that no security interest shall be effective prior to Closing); (vii) cause its independent accountants to deliver customary comfort letters (including as to customary “negative assurance” and change period comfort) with respect to any financial statements included in the Required Information and (viii) assist in obtaining customary payoff letters relating to the repayment of any existing third party indebtedness for borrowed money of the Company or its Subsidiaries required by the Debt Commitment Letter (as of the date hereof) to be repaid on or coincidental with the Closing and, including under upon repayment of such indebtedness, termination of any related Encumbrances securing any such obligations to be repaid; provided, however, that, in each case, nothing herein shall require such cooperation to the USA PATRIOT Act extent it would interfere unreasonably with the business or operations of 2001.
(b) Notwithstanding Section 6.11(a)the Company or any of its Subsidiaries, (i) cause significant competitive harm to the Company or any of its Subsidiaries or create an unreasonable risk of harm to any property or assets of the Company and its Subsidiaries; and provided, further, that neither the Company nor any of its Subsidiaries will shall (A) be required to pay or commit to pay any commitment or other similar fee, bear any cost or expense or make any other payment or incur any other liability prior to the Closing Date (other than with respect to delivering customary authorization letters) or agree or agree to provide any indemnity in connection with the Financing or any of the foregoing matters, (B) have any liability or obligation under any loan agreement, indenture and related documents, unless and until the Closing occurs (other than with respect to delivering customary authorization letters), (C) be required to take any action that would subject any of the Company’s or its Subsidiaries’ respective directors, managers, officers, employees, accountants, legal counsel or other Representatives to any personal liability, (D) be required to take any action that will conflict with or violate the Company’s or any Subsidiary’s Constituent Documents as in effect on the date hereof, any material contracts to which the Company or any Subsidiary is a party in effect on the date hereof, or any Laws, (E) take any corporate action (including any approvals of its board of directors or similar body), (F) take any other action that is not contingent upon the Closing or enter into or execute any agreement or document (other than with respect to delivering customary authorization letters), (G) waive or amend any term of this Agreement or any other contract to which it is a party or take any action in respect of the Financing to the extent that such action would cause any condition to Closing set forth in Article VIII to fail to be satisfied or otherwise result in a breach of this Agreement by the Company or (H) provide any information the disclosure of which is prohibited or restricted under any Laws. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided, however, that such logos are used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries and its or their marks.
(b) None of the Company, any of its Subsidiaries nor its and their respective officers, directors, employees, accountants, consultants, legal counsel, agents and other Representatives shall be required to take any action that would subject any such Person to liability, to bear any out-of-pocket cost or expense or to pay any commitment or other similar fee or incur, prior to the Closing, make any other payment or incur any other liability or obligation provide or agree to provide any indemnity in connection with the Debt Financing contemplated by the Debt Commitment Letter or their performance of their respective obligations under this Section 7.16 and any information utilized in connection therewith, and any information utilized in connection therewith, in each case other than with respect to the preparation of audited and other historical financial statements and customary representation and authorization letters (including with respect to the presence or absence of material non-public information and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing, ). Parent shall (iii) none of indemnify and hold harmless the Company, its Subsidiaries or their respective officers, directors, employees or advisors will be required to execute or enter into or perform any agreement (including any opinion, solvency certificate or other deliverable) with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Closing (other than authorization letters contemplated by Section 6.11(a)(vii)) and the boards of directors or other equivalent governing bodies of the Company, Parent, Merger Sub or the Surviving Corporation will not be required to enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources pursuant to the Debt Commitment Letter that are effective prior to the Closing, (iii) nothing herein will obligate the Company or any of its Subsidiaries to provide or cause to be provided any information or take or cause to be taken any action to the extent it would result in a violation of applicable Law or such Person’s respective organizational documents, loss of any legal privilege or a default, event of default, or acceleration under, or termination of any Contract in effect on the date of this Agreement, and (iv) nothing herein will obligate the Company or any of its Subsidiaries to take any action that would (x) unreasonably interfere with the ongoing operations of the Company or its Subsidiaries or (y) cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement. Parent will, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.11.
(c) Parent will indemnify and hold harmless the Company and each of its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid suffered or payable incurred by them in connection with or the arrangement of the Debt Financing contemplated by the Debt Commitment Letter and the performance of their respective obligations in respect of the Debt Financing, and any thereof) suffered or incurred information utilized in connection with any financing therewith, except to the extent such liabilities or other securities offering losses arise solely from misstatements contained in information in respect of Parent or the Company and its Subsidiaries supplied by the Company, its Subsidiaries or any assistance of their Representatives or activities provided in connection therewith; provided that Parent will have no obligation to indemnify or hold harmless any such Person to the extent that any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are suffered or incurred as a result of caused by the gross negligence, bad faith or willful misconduct or fraud of the Company as determined by a court or any of competent jurisdiction in a final its Subsidiaries or any of their respective Representatives and other than with respect to the preparation of audited and other historical financial statements and customary representation and authorization letters (including with respect to the presence or absence of material non-appealable verdict.
public information and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing) and (dii) In no event will promptly upon written request of the receipt Company, reimburse the Company and its Subsidiaries for all out-of-pocket costs and expenses incurred by the Company or availability of any funds or financing its Subsidiaries (including those of its accountants, consultants, legal counsel, agents and other Representatives) in connection with the cooperation required for the Debt Financing contemplated by (other than with respect to the Debt Commitment Letter) by or to Parent or any preparation of audited and other financing transaction be a condition to any of the obligations of Parent hereunderhistorical financial statements).
Appears in 1 contract
Sources: Merger Agreement (Ladenburg Thalmann Financial Services Inc.)
Financing Assistance. In connection with Parent’s financing in connection with the Transaction (aincluding the Debt Financing) The (the “Parent Financing”), prior to the Closing, the Company will, shall provide to Parent and will cause its Subsidiaries and its Representatives toSub, at the expense of Parent’s sole expense, use its and their reasonable best efforts to provide such customary cooperation as may be reasonably requested by ParentParent and Sub that is necessary in connection with the arrangement and consummation of the Parent Financing, including (in each case, to assist Parent in arranging, obtaining or syndicating the Debt Financing, the Alternative Financing or any debt or equity financing undertaken in any form in replacement of all or any portion of such Debt Financing or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality of the foregoing, upon the reasonable request by Parent, the Company will and will cause its Subsidiaries and its Representatives to use its and their reasonable best efforts to:extent reasonably requested):
(i) as promptly as reasonably practicable provide information (financial or otherwise) relating to the Company to the Financing Sources (including information to be used participating in the preparation a reasonable number of an information package regarding the businessmeetings, operationsdue diligence sessions, financial condition, financial projections drafting sessions and prospects of Parent sessions between senior management and the Company customary for the completion of such financing) to the extent reasonably requested by Parent or the Financing Sources to prepare customary offering or information documents to be used for the completion sources of the Debt Parent Financing, including participation in any drafting sessions;
(ii) reasonably cooperate providing reasonable and assist customary assistance with the due diligencepreparation of documents customarily required in connection with bank debt financings and, ratings agency process and marketing efforts of Parentto the extent required under the Debt Commitment Letter, its Representatives and the Financing Sources, including participation by officers providing all documentation and other representatives, with appropriate seniority and expertise, in a reasonable number of investor meetings, presentations, sessions with ratings agencies, due diligence sessions and road shows, at times and at locations reasonably requested by Parent and upon reasonable advance notice;
(iii) reasonably assist in preparing customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, lender presentations, financial statements, private placement memoranda, prospectuses, filings with the SEC and other similar documents, including delivery of and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or the Alternative Financing of (A) audited consolidated balance sheets and related audited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended at least 75 days prior to the Closing Date (and internal control reports and audit reports for such financial statements, which will not be subject to any “going concern” qualifications), (B) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, and (C) all other historical financial and other information regarding the Company reasonably necessary to permit Parent to prepare pro forma financial statements required or customary for the Debt Financing and a securities offering contemplated by the Debt Financing or the Alternative Financing;
(iv) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources or as may be requested by the SEC in connection with the completion of the Debt Financing or Alternative Financing;
(v) reasonably facilitate the pledge of collateral required under the Debt Commitment Letter to be delivered and become effective at the Closing as may be reasonably requested by Parent (it being acknowledged that no such pledge may become effective other than concurrently with the Closing Date and the termination of certain of the Company’s existing financing arrangements), and assisting Parent, the Financing Sources and their respective Representatives in obtaining customary payoff letters, Lien releases, instruments of termination or discharge (in each case only to the extent such Indebtedness is required to be repaid in full on the Closing Date or in respect of which a default or event of default would arise as a result of the consummation of the transactions contemplated hereunder) and in each case to be effective upon receipt in cash of the payoff amount;
(vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with the Debt Financing or the Alternative Financing;
(vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the financial statements of the Company provided pursuant Subsidiaries required thereunder (but subject to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentation5.06(c)), including any documentation or other information reasonably required by providing customary representation letters, and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including by participating in any accounting due diligence sessions;
(viii) subject to customary confidentiality provisions, provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors;
(ix) provide or cause to be provided any customary certificates or opinions as may reasonably be requested in connection with the Debt Financing and the Alternative Financing; and
(x) provide all reasonably available information about the Company and its Subsidiaries to the extent required bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including under the USA PATRIOT U.S.A. Patriot Act of 2001.;
(biii) Notwithstanding Section 6.11(a)using reasonable best efforts to assist Parent in obtaining surveys, legal opinions from local outside counsel (and not internal counsel or New York or Delaware counsel) and title insurance as reasonably requested by Parent or Sub for the Parent Financing; and
(iv) (A) taking all actions reasonably necessary to (1) permit the sources involved in the Parent Financing to evaluate the Company and the Company Subsidiaries’ current assets, and cash management and accounting systems, policies and procedures relating thereto, for the purpose of establishing collateral arrangements to the extent reasonable and customary, (i2) neither the Company nor any of its Subsidiaries will be required to pay any commitment or establish customary bank and other similar fee or incur, prior to the Closing, any other liability or obligation accounts and blocked account agreements and lock box arrangements in connection with the Debt Financing, foregoing and (ii3) none permit representatives of the Companyprospective lenders to conduct customary commercial field examinations, its Subsidiaries or their respective officers, directors, employees or advisors will be required to execute or enter into or perform any agreement (including any opinion, solvency certificate or other deliverable) with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Closing (other than authorization letters contemplated by Section 6.11(a)(vii)) customary inventory appraisals and the boards of directors or other equivalent governing bodies a customary appraisal of the Company, Parent, Merger Sub or the Surviving Corporation will not be required Owned Real Property and (B) using commercially reasonable efforts to enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company make audits and its Subsidiaries as may be required by the Financing Sources pursuant to the Debt Commitment Letter that are effective prior to the Closing, (iii) nothing herein will obligate the Company or any of its Subsidiaries to provide or cause to be provided any information or take or cause to be taken any action to the extent it would result in a violation of applicable Law or such Person’s respective organizational documents, loss appraisals delivered for purposes of any legal privilege or a default, event of default, or acceleration under, or termination of any Contract in effect on the date of this Agreement, and (iv) nothing herein will obligate the Company or any of its Subsidiaries credit facility available to take any action that would (x) unreasonably interfere with the ongoing operations of the Company or its Subsidiaries or (y) cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement. Parent will, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.11Parent.
(c) Parent will indemnify and hold harmless the Company and each of its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) suffered or incurred in connection with any financing or other securities offering of Parent or its Subsidiaries or any assistance or activities provided in connection therewith; provided that Parent will have no obligation to indemnify or hold harmless any such Person to the extent that any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are suffered or incurred as a result of the gross negligence, willful misconduct or fraud of the Company as determined by a court of competent jurisdiction in a final non-appealable verdict.
(d) In no event will the receipt or availability of any funds or financing (including the Debt Financing contemplated by the Debt Commitment Letter) by or to Parent or any other financing transaction be a condition to any of the obligations of Parent hereunder.
Appears in 1 contract
Sources: Merger Agreement (Beam Inc)
Financing Assistance. Active.22007448.8.doc
(a) The During the Interim Period, the Company willagrees to use reasonable best efforts to provide, and will shall cause its Subsidiaries and its their respective Representatives toto provide, in each case at the expense of Parent’s sole expense, use its and their reasonable best efforts to provide such cooperation as may be reasonably requested by Parent, Parent to assist them in causing the conditions in the Debt Commitment Letter to be satisfied or as is otherwise reasonably requested by Parent in arranging, obtaining or syndicating connection with the arrangement of the Debt Financing, the Alternative Financing or any debt or equity financing undertaken in any form in replacement of all or any portion of such Debt Financing or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality of the foregoing, upon the reasonable request by Parent, the Company will and will cause its Subsidiaries and its Representatives to use its and their including using reasonable best efforts to:
: (i) as promptly as practicable (A) furnish Parent with the Required Financial Information and such other pertinent and customary information regarding the Company and its Subsidiaries as may be reasonably practicable provide requested by Parent to the extent that such information is required in connection with the Debt Commitment Letter and (B) inform Parent if the chief executive officer, chief financial officer, treasurer or otherwisecontroller of the Company or any member of the Board of Directors of the Company shall have knowledge of any facts as a result of which a restatement of any financial statements to comply with GAAP is probable or under consideration; (ii) relating prior to and during the Marketing Period, upon reasonable prior notice, participate in a reasonable number of meetings, conference calls, presentations and roadshows with prospective lenders and investors, due diligence sessions (including accounting due diligence sessions), drafting sessions and sessions with the ratings agencies, otherwise cooperate with the marketing efforts for any of the Debt Financing and assist Parent in obtaining ratings as contemplated by the Debt Commitment Letter; (iii) reasonably assist Parent, Merger Sub and the Debt Financing Sources with the preparation of any bank information memoranda, lender presentations, investor presentations, offering documents, rating agency presentations and similar documents required in connection with the Debt Financing, provided that any such document that includes disclosure and financial statements with respect to the Company to and/or its Subsidiaries shall only reflect Parent, Merger Sub, affiliates of Parent contemplated by the Financing Sources Debt Commitment Letter, the Surviving Corporation and/or Subsidiaries as obligor(s); (including information to be used in iv) assist Parent with the preparation of an pro forma financial information package regarding the business, operations, and pro forma financial condition, financial projections and prospects of Parent and the Company customary for the completion of such financing) statements to the extent reasonably requested by Parent or the Debt Financing Sources to prepare customary be included in any offering or information documents to be used for the completion specified in Section 5 of Exhibit D of the Debt FinancingCommitment Letter or to satisfy the condition in Section 3 of Exhibit D of the Debt Commitment Letter, including participation in it being agreed that the Company and its Subsidiaries will not be required to provide any drafting sessions;
information or assistance relating to (iiI) reasonably cooperate the proposed aggregate amount of debt and assist equity financing, together with the due diligenceassumed interest rates, ratings agency process dividends (if any) and marketing efforts of Parent, its Representatives fees and the Financing Sources, including participation by officers and other representatives, with appropriate seniority and expertise, in a reasonable number of investor meetings, presentations, sessions with ratings agencies, due diligence sessions and road shows, at times and at locations reasonably requested by Parent and upon reasonable advance notice;
(iii) reasonably assist in preparing customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, lender presentations, financial statements, private placement memoranda, prospectuses, filings with the SEC and other similar documents, including delivery of and consenting expenses relating to the inclusion incurrence of such debt or incorporation equity financing, (II) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in any SEC filing related to connection with the Debt Financing or (III) any financial information related to Parent or any of its Subsidiaries or any adjustments that are not directly related to the Alternative Financing acquisition of the Company by Parent; (v) request and facilitate its independent auditors to (A) audited consolidated balance sheets and related audited statements provide, consistent with customary practice, (I) customary auditors consents (including consents of income, comprehensive income, stockholders’ equity and cash flows accountants for use of the Company for each of the three fiscal years most recently ended at least 75 days prior their reports in any materials relating to the Closing Date Debt Financing) and customary comfort letters (including “negative assurance” comfort and internal control reports and audit reports for such change period comfort) with respect to financial statements, which will not be subject to any “going concern” qualifications), (B) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, and (C) all other historical financial and other information regarding the Company reasonably necessary to permit Parent to prepare pro forma financial statements required or customary for the Debt Financing and a securities offering contemplated by the Debt Financing or the Alternative Financing;
(iv) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, Subsidiaries as may be reasonably requested by Parent, the Financing Sources Parent or as may be requested by necessary or customary for financings similar to the SEC Debt Financing (including any offering or private placement of debt securities pursuant to Rule 144A under the Securities Act) and (II) reasonable assistance to Parent in connection with the completion Parent’s preparation of pro forma financial statements and information and (B) attend accounting due diligence sessions and drafting sessions; (vi) provide Parent and the Debt Financing or Alternative Financing;
(v) reasonably facilitate Sources with all documentation and other information with respect to the pledge of collateral required under the Debt Commitment Letter to be delivered Company and become effective at the Closing its Subsidiaries as may be shall have been reasonably requested in writing by Parent (it being acknowledged that no such pledge may become effective other than concurrently with the Closing Date and the termination of certain of the Company’s existing financing arrangements), and assisting Parent, the Financing Sources and their respective Representatives in obtaining customary payoff letters, Lien releases, instruments of termination or discharge (in each case only to the extent such Indebtedness is required to be repaid in full on the Closing Date or in respect of which a default or event of default would arise as a result of the consummation of the transactions contemplated hereunder) and in each case to be effective upon receipt in cash of the payoff amount;
(vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with the Debt Financing or the Alternative Financing;
(vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the financial statements of the Company provided pursuant to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentation, including by providing customary representation letters, and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including by participating in any accounting due diligence sessions;
(viii) subject to customary confidentiality provisions, provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors;
(ix) provide or cause to be provided any customary certificates or opinions as may reasonably be requested in connection with the Debt Financing and the Alternative Financing; and
(x) provide all reasonably available information about the Company and its Subsidiaries to the extent required U.S. regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act; (vii) execute and deliver as of Closing (but not prior to Closing) any guarantee, pledge and security documents, supplemental indentures, currency or interest hedging arrangements, other definitive financing documents, or other certificates or documents as may be reasonably requested by Parent or the Debt Financing Sources (including a certificate of the chief financial officer of the Company with respect to solvency matters in the form set forth as an annex to the Debt Commitment Letter) and otherwise reasonably facilitate the pledging of collateral and the granting of security interests in respect of the Debt Financing, it being understood that such documents Active.22007448.8.doc will not take effect until the Effective Time; and (viii) to the extent required under the USA PATRIOT Debt Commitment Letter, provide customary authorization letters to the Debt Financing Sources authorizing the distribution of information to prospective lenders or investors and containing a customary representation to the Debt Financing Sources as contemplated by the Debt Commitment Letter, including that the public side versions of such documents do not include material non-public information about the Company or its Subsidiaries or their securities and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing. Notwithstanding anything to the contrary in this Section 6.13(a), nothing will require the Company to provide (or be deemed to require the Company to prepare) any (1) pro forma financial statements; (2) information regarding any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other post-Closing pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing; (3) description of all or any portion of the Financing, including any “description of notes”; (4) risk factors relating to all or any component of the Financing; (5) other information required by Rules 3-10 or 3-16 of Regulation S-X under the Securities Act, any Compensation Discussion and Analysis or other information required by Item 402 of Regulation S-K under the Securities Act or any other information customarily excluded from an offering memorandum for private placements of 2001non-convertible high-yield debt securities under Rule 144A promulgated under the Securities Act (the foregoing clauses (1) through (5) is referred herein as “Excluded Information”).
(b) Notwithstanding anything in Section 6.11(a)6.13(a) to the contrary, (i) such requested cooperation shall not unreasonably disrupt or interfere with the business or the operations of the Company or its Subsidiaries, (ii) nothing in this Section 6.13 shall require cooperation to the extent that it would (A) subject any of the Company’s or its Subsidiaries’ respective directors, managers, officers or employees to any actual or potential personal liability (as opposed to liability in his or her capacity as an officer of such Person) with respect to matters related to the Debt Financing, (B) conflict with, or violate, the Company’s and/or any of its Subsidiaries’ organization documents or any applicable Law, (C) cause any condition to the Closing set forth in Sections 7.1, 7.2 or 7.3 to not be satisfied or (D) cause any breach of this Agreement, (iii) neither the Company nor any of its Subsidiaries will shall be required to (A) pay any commitment or other similar fee or incur, prior to the Closing, incur or assume any other liability or other obligation in connection with the Debt Financingfinancings contemplated by the Commitment Letters, the Definitive Financing Agreements or the Financing prior to the Effective Time or be required to take any action that would subject it to actual or potential liability, to bear any cost or expense or to make any other payment or agree to provide any indemnity in connection with the Commitment Letters, the Definitive Financing Agreements, the Financing or any information utilized in connection therewith, in each case, that would not be reimbursed or indemnified by Parent or Merger Sub or (B) deliver or obtain opinions of internal or external counsel, (iiiv) none of the directors of the Company, acting in such capacity, shall be required to execute, deliver or enter into or perform any agreement, document or instrument, including any Definitive Financing Agreement, with respect to the Financing or adopt any resolutions or take any other actions approving the agreements, documents and instruments pursuant to which the Financing is obtained, including any Definitive Financing Agreement, (v) none of the Company, its Subsidiaries or their respective officers, directors, officers or employees or advisors will shall be required to execute execute, deliver or enter into into, or perform any agreement (agreement, document or instrument, including any opinionDefinitive Financing Agreement, solvency certificate or other deliverable) with respect to the Debt Financing (other than customary representation letters and authorization letters referred to above) that is not contingent upon the Closing occurring or that would be effective prior to the Closing (other than authorization letters contemplated by Section 6.11(a)(vii)) Effective Time and the boards of directors or other equivalent governing bodies and managers of the Company’s Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Financing is obtained prior to the Effective Time unless Parent and Merger Sub shall have determined that such directors and managers are to remain as directors and managers of the Company’s Subsidiaries on and after the Effective Time and such resolutions are contingent upon the occurrence of, or only effective as of, the Effective Time and (vi) Parent, Merger Sub and the Company agree to use their commercially reasonable efforts to maintain attorney-client privilege. The Parties agree that Parent’s or Merger Sub’s execution of an Alternative Financing Commitment Letter shall not materially expand the Surviving Corporation will not scope Active.22007448.8.doc of the assistance required under Section 6.13(a) as compared to the assistance that would be required or expected to enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources pursuant to in connection with the Debt Commitment Letter that are effective prior to the Closing, (iii) nothing herein will obligate the Company or any of its Subsidiaries to provide or cause to be provided any information or take or cause to be taken any action to the extent it would result in a violation of applicable Law or such Person’s respective organizational documents, loss of any legal privilege or a default, event of default, or acceleration under, or termination of any Contract in effect on the date of this AgreementAgreement and the related Debt Financing. The Company hereby consents to the use of its and its Subsidiary’s logos in connection with the debt financing contemplated by the Debt Commitment Letter; provided that such logos are used solely in a manner that is not intended to, and (iv) nothing herein will obligate nor reasonably likely to, harm or disparage the Company or any of its Subsidiaries to take any action that would (x) unreasonably interfere with the ongoing operations of the Company or its Subsidiaries or (y) cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement. Parent will, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.11’s Subsidiaries.
(c) Parent The Company will indemnify use its reasonable best efforts, and hold harmless the Company and will cause each of its Subsidiaries to use its respective reasonable best efforts, to update any Required Financial Information provided to Parent and the Debt Financing Sources as may be necessary so that such Required Financial Information (i) is Compliant, (ii) meets the applicable requirements set forth in the definition of “Required Financial Information” and (iii) would not, after giving effect to such update(s), cause the Marketing Period to cease pursuant to the definition of “Marketing Period.” For the avoidance of doubt, Parent may, to most effectively access the financing markets, require the cooperation of the Company and its Subsidiaries under this Section 6.13 at any time, and from time to time and on multiple occasions, between the date hereof and the Closing Date. The Company agrees to (i) file all reports on Form 10-K and Form 10-Q and, to the extent required to include financial information pursuant to Item 9.01 thereof, Form 8-K and (ii) use reasonable best efforts to file all other Forms 8-K, in each case, required to be filed with the SEC pursuant to the Exchange Act prior to the Closing Date in accordance with the time periods required by the Exchange Act. In addition, if, in connection with a marketing effort contemplated by the Debt Commitment Letter, Parent reasonably requests the Company to file a Current Report on Form 8-K pursuant to the Exchange Act that contains material non-public information with respect to the Company and its subsidiaries, which information Parent reasonably determines (and the Company does not unreasonably object) to include in a customary offering memorandum or other marketing materials for the Debt Financing, then the Company shall file such Current Report on Form 8-K.
(d) Parent shall indemnify, defend and hold harmless each of the Company, its Subsidiaries and their respective Affiliates and Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid suffered or payable incurred by them in connection with or their cooperation in respect arranging the Debt Financing and the performance of their respective obligations under this Section 6.13 and the provision of any thereof) suffered or incurred information utilized in connection with any financing or therewith (other securities offering of Parent than information provided by the Company or its Subsidiaries or any assistance or activities provided Subsidiaries), in connection therewith; provided that Parent will have no obligation to indemnify or hold harmless any such Person each case, other than to the extent that any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are of the foregoing was suffered or incurred as a result of the bad faith, gross negligence, negligence or willful misconduct of, or fraud material breach of this Agreement by, the Company and its Subsidiaries or, in each case, their respective Representatives. Parent shall, promptly upon request of the Company, reimburse the Company as determined and its Subsidiaries for all out-of-pocket fees, costs and expenses incurred by a court of competent jurisdiction in a final non-appealable verdict.
(d) In no event will the receipt Company or availability of any funds or financing its Subsidiaries (including those of its Affiliates and Representatives) in connection with the Debt Financing contemplated cooperation required by the Debt Commitment Letter) by or to Parent or any other financing transaction be a condition to any of the obligations of Parent hereunderthis Section 6.13.
Appears in 1 contract
Financing Assistance. (a) The Prior to the Closing Date, the Company will, and will cause its Subsidiaries and its Representatives to, at the expense of Parent, agrees to use its and their reasonable best efforts to provide provide, and shall cause the Company Subsidiaries and their respective Representatives to use reasonable best efforts to provide, in each case at Parent’s sole expense, such customary cooperation as may be reasonably requested by Parent, Parent to assist them in causing the conditions in the Debt Financing Commitments to be satisfied or as is otherwise reasonably requested by Parent in arranging, obtaining or syndicating connection with the arrangement of the Debt Financing, the Alternative Financing or any debt or equity financing undertaken in any form in replacement of all or any portion of such Debt Financing or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality of the foregoing, upon the reasonable request by Parent, the Company will and will cause its Subsidiaries and its Representatives to use its and their including using reasonable best efforts to:
(i) (A) as soon as reasonably available, furnish Parent with the Required Financing Information and such other pertinent and customary information regarding the Company and the Company Subsidiaries as may be reasonably requested by Parent to the extent that such information is required in connection with the Debt Financing Commitments and (B) as promptly as reasonably practicable provide information (practicable, inform Parent if the chief executive officer, chief financial officer, treasurer or otherwise) relating to controller of the Company or any member of the Company Board shall have actual knowledge of any facts as a result of which a restatement of any financial statements to comply with U.S. GAAP is probable or under active consideration;
(ii) prior to and during the Marketing Period, upon reasonable prior notice, participate in a reasonable number of meetings, conference calls, presentations and roadshows with prospective lenders and investors, due diligence sessions (including accounting due diligence sessions), drafting sessions and sessions with the ratings agencies, otherwise cooperate with the marketing efforts for any of the Debt Financing and assist Parent in obtaining ratings as contemplated by the Debt Financing Commitments;
(iii) assist Parent, Merger Sub and the Debt Financing Sources (including information to be used in with the preparation of an any bank information package regarding memoranda, lender presentations, investor presentations, offering documents, rating agency presentations and similar documents required in connection with the businessDebt Financing, operationsas reasonably requested by Parent or Merger Sub;
(iv) solely with respect to financial information and data derived from the Company’s historical books and records, assist Parent with Parent’s preparation of pro forma financial condition, information and pro forma financial projections and prospects of Parent and the Company customary for the completion of such financing) statements to the extent reasonably requested by Parent or the Debt Financing Sources to prepare customary be included in any offering documents specified in the Debt Financing Commitments or to satisfy the conditions set forth in the Debt Financing Commitments, it being agreed that the Company and the Company Subsidiaries will not be required to provide any information documents or assistance relating to (I) the proposed aggregate amount of debt and equity financing, together with assumed interest rates, dividends (if any) and fees and expenses relating to the incurrence of such debt or equity financing, (II) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used for the completion of the Debt Financing, including participation in any drafting sessions;
(ii) reasonably cooperate and assist connection with the due diligence, ratings agency process and marketing efforts of Parent, its Representatives and the Financing Sources, including participation by officers and other representatives, with appropriate seniority and expertise, in a reasonable number of investor meetings, presentations, sessions with ratings agencies, due diligence sessions and road shows, at times and at locations reasonably requested by Parent and upon reasonable advance notice;
(iii) reasonably assist in preparing customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, lender presentations, financial statements, private placement memoranda, prospectuses, filings with the SEC and other similar documents, including delivery of and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or (III) any financial information related to Parent or any of its Subsidiaries or any adjustments that are not directly related to the Alternative Financing of (A) audited consolidated balance sheets and related audited statements of income, comprehensive income, stockholders’ equity and cash flows acquisition of the Company for each of the three fiscal years most recently ended at least 75 days prior to the Closing Date (and internal control reports and audit reports for such financial statements, which will not be subject to any “going concern” qualifications), (B) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, and (C) all other historical financial and other information regarding the Company reasonably necessary to permit Parent to prepare pro forma financial statements required or customary for the Debt Financing and a securities offering contemplated by the Debt Financing or the Alternative Financing;
(iv) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources or as may be requested by the SEC in connection with the completion of the Debt Financing or Alternative Financing;
(v) reasonably facilitate the pledge execute and deliver as of collateral required under the Debt Commitment Letter to be delivered and become effective at the Closing (but not prior to the Closing) any pledge and security documents, currency or interest hedging arrangements, other definitive financing documents, or other certificates or documents as may be reasonably requested by Parent or the Debt Financing Sources (it being acknowledged that no such pledge may become effective other than concurrently including a certificate of the chief financial officer of the Company with respect to solvency matters in the Closing Date form set forth as an annex to the Financing Commitments as in effect on the date hereof) and otherwise reasonably facilitate the pledging of collateral and the termination granting of certain of the Company’s existing financing arrangements), and assisting Parent, the Financing Sources and their respective Representatives in obtaining customary payoff letters, Lien releases, instruments of termination or discharge (in each case only to the extent such Indebtedness is required to be repaid in full on the Closing Date or security interests in respect of which a default or event of default would arise as a result of the consummation of Debt Financing, it being understood that such documents will not take effect until the transactions contemplated hereunder) and in each case to be effective upon receipt in cash of the payoff amountEffective Time;
(vi) obtain any take all reasonable and customary actions necessary consents from and requested to (A) permit the Company’s independent public Debt Financing Sources to evaluate the Company and the Company Subsidiaries’ current assets, cash management and accounting firm systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements as of the Closing and to assist with other collateral audits and due diligence examinations, and (B) establish bank and other accounts and blocked account agreements and lock-box arrangements to the extent necessary in connection with the Debt Financing or (not to be effective prior to the Alternative FinancingClosing unless the Company otherwise agrees);
(vii) in connection with any securities offering contemplated as part upon reasonable request of the Debt Financing or the Alternative FinancingParent, (A) assist Parent to obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the financial statements of the Company provided pursuant to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentation, including by providing customary representation letters, surveys and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including by participating in any accounting due diligence sessionstitle insurance commitments;
(viii) subject to customary confidentiality provisionsat the request of Parent, provide customary authorization letters (A) deliver notices of prepayment (which may be delivered at Parent’s request in advance of the Closing Date so long as they are contingent upon the occurrence of the Closing) within the time periods reasonably requested by Parent and take any actions at or prior to the Financing Sources authorizing Effective Time reasonably requested by Parent to facilitate the distribution prepayment of information all outstanding amounts under any credit facilities of the Company and the Company Subsidiaries (it being understood and agreed that any prepayment is (and shall be) contingent upon the occurrence of the Closing and no actions shall be required which would obligate the Company or the Company Subsidiaries to prospective lenders complete such prepayment prior to the occurrence of the Closing); (B) arrange for customary payoff letters, lien terminations and releases and instruments and acknowledgements of discharge in respect of any such credit facilities to be delivered to Parent on or investorsprior to the Closing Date (with drafts to be delivered in advance as reasonably requested by Parent); (C) take all other reasonable actions to facilitate the payoff, discharge and termination in full at the Closing of all amounts outstanding under any such credit facilities; and (D) unwind or novate or assist Parent in connection with the unwinding or novation of any outstanding interest rate or other swaps or ▇▇▇▇▇▇ at the Effective Time designated by Parent (notice of which may be delivered at Parent’s request in advance of the Closing Date so long as permitted by the underlying swap or hedge documentation to be contingent upon the occurrence of the Closing and no actions shall be required which would obligate the Company or the Company Subsidiaries to complete such unwind or novation prior to the occurrence of the Closing Date);
(ix) request and facilitate its independent auditors to (A) provide, consistent with customary practice, (I) customary auditors consents and customary comfort letters (including “negative assurance” comfort and change period comfort) with respect to financial information relating to the Company and the Company Subsidiaries as reasonably requested by Parent or as necessary or customary for financings similar to the Debt Financing (including any offering or private placement of debt securities pursuant to Rule 144A under the Securities Act) and (II) reasonable assistance to Parent in connection with the Parent’s preparation of pro forma financial statements and information and (B) attend accounting due diligence sessions and drafting sessions required pursuant to clause (a)(ii) of this Section 8.12;
(x) furnish to Parent and the Debt Financing Sources (A) within forty-five (45) days after the end of any fiscal quarter that is not a fiscal year end, the unaudited consolidated balance sheet of the Company as of the end of such quarter and the related unaudited statements of income and cash flows (which will have been reviewed by the Company’s independent accountants as provided in SAS 100) and (B) within sixty (60) days after the end of any fiscal year, the audited consolidated balance sheet of the Company as of the end of such fiscal year and the related audited statements of income and cash flows; provided that the Company shall be deemed to have satisfied its obligations under this clause (x) upon filing the applicable financial statements with the SEC;
(xi) provide or cause Parent and the Debt Financing Sources at least three (3) Business Days prior to be provided any customary certificates or opinions the Closing Date with all documentation and other information with respect to the Company and the Company Subsidiaries as may shall have been reasonably be requested in writing by Parent at least eight (8) Business Days prior to the Closing Date that is required in connection with the Debt Financing and the Alternative Financing; and
(x) provide all reasonably available information about the Company and its Subsidiaries to the extent required by U.S. regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act; and
(xii) to the extent required under the USA PATRIOT Debt Financing Commitments, provide customary authorization letters to the Debt Financing Sources authorizing the distribution of information to prospective lenders or investors and containing a customary representation to the Debt Financing Sources as contemplated by the Debt Financing Commitments, including that the public side versions of such documents do not include material non-public information about the Company or the Company Subsidiaries or their securities and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing. Notwithstanding anything to the contrary in this Section 8.12(a), nothing will require the Company to provide (or be deemed to require the Company to prepare) any (1) pro forma financial statements, post-Closing pro forma adjustments desired to be incorporated into any information used in connection with the Financing (including any synergies or cost savings), projections, ownership or an as-adjusted capitalization table; (2) description of all or any portion of the Financing, including any such description to be included in liquidity and capital resources disclosure or any “description of notes”, or any other information customarily provided by the Financing sources or their counsel; (3) risk factors relating to all or any component of the Financing; (4) subsidiary financial statements or any other information required by Rules 3-09, 3-10 or 3-16 of Regulation S-X under the Securities Act, any Compensation Discussion and Analysis or other information required by Item 402 of Regulation S-K under the Securities Act or any other information customarily excluded from an offering memorandum for private placements of 2001non-convertible high-yield debt securities under Rule 144A promulgated under the Securities Act (clauses (1) through (4), the “Excluded Information”).
(b) Notwithstanding anything in Section 6.11(a)8.12(a) to the contrary, (i) neither such requested cooperation shall not unreasonably disrupt or interfere with the business or the operations of the Company nor or any Company Subsidiary, (ii) nothing in this Section 8.12 or Section 8.13 shall require cooperation to the extent that it would (A) subject any of its Subsidiaries will be required the Company’s or the Company Subsidiaries’ respective directors, managers, officers or employees to pay any commitment actual or other similar fee potential personal liability (as opposed to liability in his or incur, prior her capacity as an officer of such Person) with respect to the Closing, any other liability or obligation in connection with matters related to the Debt Financing, (iiB) none of conflict with, or violate, the Company, its Subsidiaries or their respective officers, directors, employees or advisors will be required to execute or enter into or perform ’s and/or any agreement (including any opinion, solvency certificate or other deliverable) with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Closing (other than authorization letters contemplated by Section 6.11(a)(vii)) and the boards of directors or other equivalent governing bodies of the Company, Parent, Merger Sub or the Surviving Corporation will not be required to enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources pursuant to the Debt Commitment Letter that are effective prior to the Closing, (iii) nothing herein will obligate the Company Subsidiaries’ organization documents or any of its Subsidiaries to provide Applicable Law or cause to be provided any information Privacy Policies or take or cause to be taken any action to the extent it would result in a violation of applicable Law or such Person’s respective organizational documentsbreach of, loss or default under, any Company Contract, (C) cause disclosure of any legal privilege Personally Identifiable Information in violation of Applicable Law, (D) cause or a default, event of default, or acceleration under, or permit any termination of or payment of principal or interest under (in each case prior to the Effective Time) any Contract contract referred to in effect on the date of this Agreementclause (a)(viii) above, and (iv) nothing herein will obligate the Company or any of its Subsidiaries to take any action that would (x) unreasonably interfere with the ongoing operations of the Company or its Subsidiaries or (yE) cause any condition to the Closing set forth herein in ARTICLE IX to not be satisfied or otherwise (F) cause any breach of this Agreement. , (iii) neither the Company nor any Company Subsidiary shall be required to (A) pay any commitment or other similar fee or incur or assume any liability or other obligation in connection with the financings contemplated by the Financing Commitments, the definitive agreements related to the Financing or the Financing prior to the Effective Time or be required to take any action that would subject it to actual or potential liability, to bear any cost or expense or to make any other payment or agree to provide any indemnity in connection with the Financing Commitments, the definitive agreements related to the Financing, the Financing or any information utilized in connection therewith, in each case, that would not be reimbursed or indemnified by Parent willor Merger Sub or (B) deliver or obtain opinions of internal or external counsel, promptly upon request by (iv) none of the directors of the Company, reimburse acting in such capacity, shall be required to execute, deliver or enter into or perform any agreement, document or instrument, with respect to the Financing or adopt any resolutions or take any other actions approving the agreements, documents and instruments pursuant to which the Financing is obtained and (v) none of the Company, the Company for all reasonable Subsidiaries or their respective directors, officers or employees shall be required to execute, deliver or enter into, or perform any agreement, document or instrument with respect to the Financing (other than customary representation letters and documented out-authorization letters referred to above) that is not contingent upon the Closing or that would be effective prior to the Effective Time and the directors and managers of the Company Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Financing is obtained prior to the Effective Time unless Parent and Merger Sub shall have determined that such directors and managers are to remain as directors and managers of the Company Subsidiaries on and after the Effective Time and such resolutions are contingent upon the occurrence of-pocket costs , or only effective as of, the Effective Time. The Company hereby consents to the use of its and expenses (including reasonable attorneys’ fees) incurred its Subsidiary’s logos in connection with the debt financing contemplated by the Debt Financing Commitments; provided that such logos are used solely in a manner that is not intended to, nor reasonably likely to, harm or disparage the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.11the Company Subsidiaries.
(c) The Company will use its reasonable best efforts, and will cause each of the Company Subsidiaries to use its respective reasonable best efforts, to update any Required Financing Information provided to Parent will indemnify and hold harmless the Debt Financing Sources as may be necessary so that such Required Financing Information (i) is Compliant, (ii) meets the applicable requirements set forth in the definition of “Required Financing Information” and (iii) would not, after giving effect to such update(s), cause the Marketing Period to cease pursuant to the definition of “Marketing Period.” For the avoidance of doubt, Parent may, to most effectively access the financing markets, require the cooperation of the Company and the Company Subsidiaries under this Section 8.12 at any time, and from time to time on multiple occasions, between the date hereof and the Closing Date; provided, that, for the avoidance of doubt, the Marketing Period shall not be applicable as to more than one attempt to access the markets. The Company agrees to (i) file all reports on Form 10-K and Form 10-Q and, to the extent required to include financial information pursuant to Item 9.01 thereof, Form 8-K and (ii) use reasonable best efforts to file all other Forms 8-K, in each of its Subsidiaries and their respective Representatives from and against any and all liabilitiescase, lossesrequired to be filed with the SEC pursuant to the Exchange Act prior to the Closing Date in accordance with the time periods required by the Exchange Act. In addition, damagesif, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or a marketing effort contemplated by the Debt Financing Commitments, Parent reasonably requests the Company to file a Current Report on Form 8-K pursuant to the Exchange Act that contains material non-public information with respect to the Company and the Company Subsidiaries, which information Parent reasonably determines (and the Company does not unreasonably object) to include in respect of any thereof) suffered or incurred in connection with any financing a customary offering memorandum or other securities offering of Parent or its Subsidiaries or any assistance or activities provided in connection therewith; provided that Parent will have no obligation to indemnify or hold harmless any such Person to marketing materials for the extent that any such liabilitiesDebt Financing, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are suffered or incurred as a result of the gross negligence, willful misconduct or fraud of unless the Company as determined by a court of competent jurisdiction in a final nonreasonably objects, then the Company shall file such Current Report on Form 8-appealable verdict.K.
(d) In no event will the receipt or availability of any funds or financing (including the Debt Financing contemplated by the Debt Commitment Letter) by or to Parent or any other financing transaction be a condition to any shall indemnify, defend and hold harmless each of the obligations of Parent hereunder.Company, the Company Subsidiaries and the
Appears in 1 contract
Financing Assistance. (a) The Prior to the Acceptance Time, the Company willshall, and will shall use its reasonable best efforts to cause its Subsidiaries and its Representatives to, at the expense of Parent, use its and their reasonable best efforts to provide such all cooperation as may be reasonably requested by Parent, to assist Parent in arranging, obtaining or syndicating connection with the arrangement of the Debt Financing, the Alternative Financing or any debt or equity financing undertaken in any form in replacement of all or any portion of such Debt Financing or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality of the foregoing, upon the reasonable request by Parent, the Company will and will cause its Subsidiaries and its Representatives to use its and their which reasonable best efforts toshall include:
(i) furnishing Parent as promptly as reasonably practicable provide with financial information (financial or otherwise) relating to the Company to the Financing Sources (including information to be used in the preparation of an information package regarding the business, operations, financial condition, financial projections and prospects of Parent and the Company customary for the completion of such financing) to the extent reasonably requested by Parent or the Financing Sources to prepare customary offering or information documents to be used for the completion of the Debt Financing, including participation in any drafting sessions;
(ii) reasonably cooperate and assist with the due diligence, ratings agency process and marketing efforts of Parent, its Representatives and the Financing Sources, including participation by officers and other representatives, with appropriate seniority and expertise, in a reasonable number of investor meetings, presentations, sessions with ratings agencies, due diligence sessions and road shows, at times and at locations reasonably requested by Parent and upon reasonable advance notice;
(iii) reasonably assist in preparing customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, lender presentations, financial statements, private placement memoranda, prospectuses, filings with the SEC and other similar documents, including delivery of and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or the Alternative Financing of (A) audited consolidated balance sheets and related audited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended at least 75 days prior to the Closing Date (and internal control reports and audit reports for such financial statements, which will not be subject to any “going concern” qualifications), (B) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, and (C) all other historical financial and other pertinent information regarding the Company reasonably necessary to permit Parent to prepare pro forma financial statements required or customary for the Debt Financing and a securities offering contemplated by the Debt Financing or the Alternative Financing;
(iv) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources or as may be requested by the SEC in connection with the completion of the Debt Financing or Alternative Financing;
(v) reasonably facilitate the pledge of collateral required under the Debt Commitment Letter to be delivered and become effective at the Closing as may be reasonably requested by Parent (it being acknowledged that no such pledge may become effective other than concurrently with the Closing Date and the termination of certain of the Company’s existing financing arrangements), and assisting Parent, the Financing Sources and their respective Representatives in obtaining customary payoff letters, Lien releases, instruments of termination or discharge (in each case only to the extent such Indebtedness is required to be repaid in full on the Closing Date or in respect of which a default or event of default would arise as a result of the consummation of the transactions contemplated hereunder) and in each case to be effective upon receipt in cash of the payoff amount;
(vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with the Debt Financing or the Alternative Financing;
(vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the financial statements of the Company provided pursuant to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentation, including by providing customary representation letters, and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including by participating in any accounting due diligence sessions;
(viii) subject to customary confidentiality provisions, provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors;
(ix) provide or cause to be provided any customary certificates or opinions as may reasonably be requested in connection with the Debt Financing and the Alternative Financing; and
(x) provide all reasonably available information about the Company and its Subsidiaries to the extent such information exists (or is otherwise customary for debt financings similar to the Debt Financing, unless the delivery of such information would be unreasonably burdensome) and is reasonably requested by Parent to consummate the Debt Financing (including the Required Financial Information);
(ii) participating in a reasonable number of meetings, presentations, due diligence sessions, drafting sessions, meetings with prospective lenders and sessions with rating agencies in connection with the Debt Financing, and cooperating with Parent in connection with Parent’s preparation of materials for rating agency presentations, bank information memoranda (including, to the extent necessary, an additional bank information memorandum that does not include material non-public information) and similar documents required under in connection with the Debt Financing;
(iii) (A) reasonably assisting Parent in connection with Parent’s preparation of one or more credit or other similar agreements, as well as any pledge and security documents, and other definitive financing documents, collateral filings or other certificates or documents as may be reasonably requested by Parent and otherwise reasonably facilitating the pledging of collateral; provided, however, that no perfected security interest, pledge or guarantee shall be effective until the Effective Time and (B) reasonably facilitating the taking of all corporate (or equivalent) actions by the Company and its Subsidiaries with respect to entering such definitive financing documents and necessary to permit consummation of the Debt Financing; and
(iv) at least four business days prior to the Acceptance Time, providing all documentation and other information about the Company that is reasonably requested by the Lenders as the Lenders reasonably determine is required by applicable “know your customer” and anti-money laundering rules and regulations, regulations including under the USA PATRIOT Act Act, to the extent requested by Parent in writing at least nine business days prior to the Acceptance Time; provided; however, in each case that: (A) none of 2001.
the Company or its Representatives shall be required to execute or enter into, perform or authorize any agreement or deliver any guaranty, mortgage, collateral filing, blocked account control agreement, certificate, document or other instrument, in each case the effectiveness of which is not contingent upon the Effective Time or that would otherwise be effective prior to the Effective Time; (bB) Notwithstanding such requested cooperation shall not unreasonably interfere with the business or the ongoing operations of the Company; (C) nothing in this Section 6.11(a)5.14 shall require cooperation to the extent that it could: (1) cause any Offer Condition not to be satisfied or otherwise cause any breach of this Agreement; or (2) reasonably be expected to conflict with or violate the Company’s Organizational Documents or any Legal Requirement, or result in the contravention of, or result in a violation or breach of, or default under, any Material Contract; (iD) prior to the Effective Time, neither the Company nor any of its Subsidiaries will Representatives shall be required to pay any commitment or other similar fee or incur, prior to the Closing, incur any other liability or obligation in connection with the Debt Financing, (ii) none of the Company, its Subsidiaries or their respective officers, directors, employees or advisors will be required to execute or enter into or perform any agreement (including any opinion, solvency certificate or other deliverable) with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Closing (other than authorization letters financings contemplated by Section 6.11(a)(vii)) and the boards of directors or other equivalent governing bodies of the Company, Parent, Merger Sub or the Surviving Corporation will not be required to enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources pursuant to the Debt Commitment Letter Letter, other than expenses that are effective prior to the Closing, advanced or reimbursed as provided in Section 5.14(c); and (iiiE) nothing herein will shall obligate the Company or any of its Subsidiaries to provide Representatives to: (1) provide, or cause to be provided provided, any information legal opinion; provided, however, that the Company or take its Representatives shall use their reasonable best efforts to provide, or cause to be taken provided, customary backup documentation for legal opinions that are required in connection with the Debt Financing to the extent reasonably requested by Parent in accordance with this Section 5.14(a); or (2) take any action or provide any information to the extent it would result in a violation of applicable Law Legal Requirements.
(b) The Company hereby consents to the use of its and its Subsidiaries’ logos solely for the purpose of obtaining the Debt Financing; provided that such logos are used solely in a manner that is not intended to or such Person’s respective organizational documents, loss of any legal privilege reasonably likely to harm or a default, event of default, or acceleration under, or termination of any Contract in effect on the date of this Agreement, and (iv) nothing herein will obligate disparage the Company or any of its Subsidiaries to take any action that would (x) unreasonably interfere with or the ongoing operations reputation or goodwill of the Company or its Subsidiaries or (y) cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement. Parent will, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.11or any of their respective intellectual property rights.
(c) Neither the Company nor its Representatives shall be required to take any action that would subject any of them to bear any cost or expense or to pay any commitment or other similar fee or make any other payment or incur any other liability or provide or agree to provide any indemnity in connection with the Debt Financing or the performance of their respective obligations under this Section 5.14, except to the extent contingent upon the Effective Time and except in the case of costs, expenses or fees, if such amounts are advanced or reimbursed as provided in this Section 5.14(c). Parent will indemnify and Acquisition Sub shall indemnify, defend and hold harmless each of the Company and each of its Subsidiaries and their respective Representatives from and against against, and shall compensate and reimburse each of them for, any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid suffered or payable incurred by any of them in connection with the Debt Financing and the performance of their respective obligations under this Section 5.14 and any information utilized in connection therewith, except to the extent such liabilities or in respect obligations resulted from: (i) information provided by or on behalf of the Company or any thereofof its Representatives; or (ii) suffered the gross negligence or bad faith of, or willful misconduct by, the Company. Parent shall, within 30 days after the delivery of a written request by the Company accompanied by supporting documentation therefor, reimburse the Company and each of its Representatives for all reasonable and documented out-of-pocket costs and expenses incurred by the Company or any of its Representatives in connection with any financing or other securities offering of Parent or its Subsidiaries or any assistance or activities provided cooperation in connection therewith; provided that Parent will have no obligation to indemnify or hold harmless any such Person to the extent that any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are suffered or incurred as a result of the gross negligence, willful misconduct or fraud of the Company as determined by a court of competent jurisdiction in a final non-appealable verdict.
(d) In no event will the receipt or availability of any funds or financing (including with the Debt Financing contemplated provided by the Debt Commitment Letter) by Company or its Representatives pursuant to Parent or any other financing transaction be a condition to any of the obligations of Parent hereunderthis Section 5.14.
Appears in 1 contract
Sources: Merger Agreement (Xenoport Inc)
Financing Assistance. (a) The Company willPrior to the Closing, Seller agrees to provide, and will shall cause its Subsidiaries to provide, and its Representatives to, at the expense of Parent, shall use its and their reasonable best efforts to provide such cause its Representatives to provide, all customary cooperation (including with respect to timeliness) in connection with the arrangement of the financing contemplated by the Commitment Letter as may be reasonably requested by ParentBuyer, to assist Parent in arranging, obtaining or syndicating the Debt Financing, the Alternative Financing or any debt or equity financing undertaken in any form in replacement of all or any portion of such Debt Financing or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality of the foregoing, upon the reasonable request by Parent, the Company will and will cause its Subsidiaries and its Representatives to use its and their reasonable best efforts to:
including (i) as promptly as reasonably practicable provide information (financial or otherwise) relating to the Company to the Financing Sources (including information to be used in the preparation of an information package regarding the business, operations, financial condition, financial projections and prospects of Parent and the Company customary for the completion of such financing) to the extent reasonably requested by Parent or the Financing Sources to prepare customary offering or information documents to be used for the completion of the Debt Financing, including participation in any drafting sessions;
(ii) reasonably cooperate and assist with the due diligence, ratings agency process and marketing efforts of Parent, its Representatives and the Financing Sources, including participation by officers and other representatives, with appropriate seniority and expertise, participating in a reasonable number of investor meetings, presentations, sessions with ratings agenciesroad shows, drafting sessions, due diligence sessions and road showssessions with prospective lenders, investors and ratings agencies that are customary for financings of a type similar to the financing contemplated by the Commitment Letter; (ii) assisting in a commercially reasonable manner Buyer and the Financing Sources in the preparation of any lender presentations, bank information memoranda and similar documents reasonably requested by Buyer in connection with the financing contemplated by the Commitment Letter at times and at locations reasonably requested by Parent and upon reasonable advance notice;
mutually agreed; (iii) reasonably assist in preparing customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, lender presentations, financial statements, private placement memoranda, prospectuses, filings cooperating with the SEC marketing efforts of Buyer and other similar documents, including delivery the Financing Sources for any of and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or the Alternative Financing of (A) audited consolidated balance sheets and related audited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended at least 75 days prior to the Closing Date (and internal control reports and audit reports for such financial statements, which will not be subject to any “going concern” qualifications), (B) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, and (C) all other historical financial and other information regarding the Company reasonably necessary to permit Parent to prepare pro forma financial statements required or customary for the Debt Financing and a securities offering financing contemplated by the Debt Financing or the Alternative Financing;
Commitment Letter; (iv) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives assisting in the preparation of the Company and its Subsidiaries, documents and information relating to the Company Financing, including any customary credit agreements, indentures and its Subsidiariespledge and security documents and otherwise reasonably facilitating the granting of a security interest (and perfection thereof) in collateral, in each caseguarantees, other definitive financing documents or other certificates, customary closing certificates and documents as may be reasonably requested by ParentBuyer and assisting in the negotiation of any such agreements and other documents; provided, that any obligations contained in all such agreements and documents shall be subject to the Financing Sources or as may be requested by the SEC in connection with the completion occurrence of the Debt Financing or Alternative Financing;
Closing and effective no earlier than the Closing; and (v) reasonably using reasonable best efforts to facilitate the pledge obtaining of collateral required under the Debt Commitment Letter to be delivered and become effective at the Closing as may be reasonably requested by Parent (it being acknowledged that no such pledge may become effective other than concurrently with the Closing Date and the termination of certain of the Company’s existing financing arrangements), and assisting Parent, the Financing Sources and their respective Representatives in obtaining customary payoff letters, Lien releases, lien terminations and instruments of termination or discharge (in each case only to be delivered at and subject to the extent such Indebtedness is required to be repaid in full Closing providing for the payoff, discharge and termination on the Closing Date or in respect of which a default or event of default would arise as a result all Indebtedness of the consummation of the transactions Business contemplated hereunder) and in each case by this Agreement to be effective upon receipt in cash of paid off, discharged and terminated on the payoff amount;
(vi) obtain Closing Date. Customary cooperation shall not include taking any necessary consents from the Company’s independent public accounting firm in connection actions that would unreasonably interfere with the Debt Financing ongoing business or operations of Seller and its Subsidiaries. Notwithstanding the Alternative Financing;
(vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financingforegoing, (Av) obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion none of Seller or incorporation of their audit reports with respect to the financial statements of the Company provided pursuant to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentation, including by providing customary representation letters, and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including by participating in any accounting due diligence sessions;
(viii) subject to customary confidentiality provisions, provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors;
(ix) provide or cause to be provided any customary certificates or opinions as may reasonably be requested in connection with the Debt Financing and the Alternative Financing; and
(x) provide all reasonably available information about the Company and its Subsidiaries to the extent required under applicable “know your customer” and anti-money laundering rules and regulations, including under the USA PATRIOT Act of 2001.
(b) Notwithstanding Section 6.11(a), (i) neither the Company nor any of its Subsidiaries will shall be required to pay any commitment fees or other similar fee expenses or incur, incur prior to the Closing, Effective Time any other liability or obligation in connection with the Debt Financingfinancings contemplated by the Commitment Letter, (iiw) none of the CompanySeller, its Subsidiaries or their respective officers, directors, directors or employees or advisors will shall be required to execute or enter into or perform any agreement (including any opinion, solvency certificate or other deliverable) with respect to the Debt Financing financing contemplated by the Commitment Letters that is not contingent upon the Closing occurring or that would be effective prior to the Closing Effective Time (other than authorization letters contemplated by Section 6.11(a)(vii)) and for the avoidance of doubt, the boards of directors or other equivalent governing bodies of the Company, Parent, Merger Sub or the Surviving Corporation will not be required to Buyer shall enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company Seller and its Subsidiaries as may be required by the Financing Sources lenders pursuant to the Debt Commitment Letter at, or as of, the Closing), (x) Seller shall not be required to make any representation, warranties or certifications as to which, after Seller’s use of reasonable best efforts to cause such representation, warranty or certification to be true, Seller has in its good faith determined that are effective such representation, warranty or certification is not true, (y) Seller shall not be required to become subject to any obligations or liabilities with respect to such agreements or documents prior to the Closing, and (iiiz) nothing herein will shall obligate the Company Seller or any of its Subsidiaries to provide provide, or cause to be provided provided, any legal opinion by its counsel, or to provide any information or take or cause to be taken any action to the extent it would result in a violation of applicable Law or such Person’s respective organizational documents, loss of any legal privilege or a defaultprivilege. For the avoidance of doubt, in no event of default, or acceleration under, or termination of any Contract in effect on the date of this Agreement, and (iv) nothing herein will obligate the Company shall Seller or any of its Subsidiaries to take any action that would (x) unreasonably interfere with the ongoing operations of the Company or its Subsidiaries or (y) cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any in breach of this AgreementSection 5.25(a) because of the failure to deliver, after use of reasonable best efforts to do so, any information that is not prepared in the ordinary course of the Seller’s business and operations at the time requested by Buyer. Parent will, promptly upon request Seller and its Representatives shall be given a reasonable opportunity to review and comment on any financing documents and any materials that are to be presented during any meetings conducted in connection with the financing contemplated by the CompanyCommitment Letter, reimburse the Company for and Buyer shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Seller and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.11Representatives.
(cb) Parent will Buyer shall indemnify and hold harmless the Company and each of Seller, its Subsidiaries and its and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid suffered or payable incurred by them in connection with the arrangement of the financing contemplated by the Commitment Letter and the performance of their respective obligations under Section 5.25(a) and any information utilized in connection therewith. Whether or in respect not the Closing occurs, Buyer shall, promptly upon written request by Seller, reimburse Seller and its Subsidiaries for all reasonable and documented out-of-pocket costs and expenses incurred by Seller or its Subsidiaries (including those of any thereofits accountants, consultants, legal counsel, agents and other Representatives) suffered or incurred in connection with any financing or other securities offering of Parent or its Subsidiaries or any assistance or activities provided in connection therewith; provided that Parent will have no obligation to indemnify or hold harmless any such Person to the extent that any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are suffered or incurred as a result of the gross negligence, willful misconduct or fraud of the Company as determined cooperation required by a court of competent jurisdiction in a final non-appealable verdictSection 5.25(a).
(d) In no event will the receipt or availability of any funds or financing (including the Debt Financing contemplated by the Debt Commitment Letter) by or to Parent or any other financing transaction be a condition to any of the obligations of Parent hereunder.
Appears in 1 contract
Financing Assistance. (a) The From the date hereof until the Effective Time, the Company willand its Subsidiaries shall, and will cause its Subsidiaries and its Representatives to, at the expense of Parent, shall use its and their reasonable best efforts to provide such cooperation as may be reasonably requested by Parent, to assist Parent in arranging, obtaining or syndicating the Debt Financing, the Alternative Financing or any debt or equity financing undertaken in any form in replacement of all or any portion of such Debt Financing or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality of the foregoing, upon the reasonable request by Parent, the Company will and will cause its Subsidiaries and its Representatives to use its and their reasonable best efforts to:
(i) as promptly as reasonably practicable provide information (financial or otherwise) relating to the Company to the Financing Sources (including information to be used in the preparation of an information package regarding the business, operations, financial condition, financial projections and prospects of Parent and the Company customary for the completion of such financing) to the extent reasonably requested by Parent or the Financing Sources to prepare customary offering or information documents to be used for the completion of the Debt Financing, including participation in any drafting sessions;
(ii) reasonably cooperate and assist with the due diligence, ratings agency process and marketing efforts of Parent, its Representatives and the Financing Sources, including participation by officers and other representatives, with appropriate seniority and expertise, in a reasonable number of investor meetings, presentations, sessions with ratings agencies, due diligence sessions and road shows, at times and at locations reasonably requested by Parent and upon reasonable advance notice;
(iii) reasonably assist in preparing customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, lender presentations, financial statements, private placement memoranda, prospectuses, filings with the SEC and other similar documents, including delivery of and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or the Alternative Financing of (A) audited consolidated balance sheets and related audited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended at least 75 days prior to the Closing Date (and internal control reports and audit reports for such financial statements, which will not be subject to any “going concern” qualifications), (B) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, and (C) all other historical financial and other information regarding the Company reasonably necessary to permit Parent to prepare pro forma financial statements required or customary for the Debt Financing and a securities offering contemplated by the Debt Financing or the Alternative Financing;
(iv) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources or as may be requested by the SEC in connection with the completion of the Debt Financing or Alternative Financing;
(v) reasonably facilitate the pledge of collateral required under the Debt Commitment Letter to be delivered and become effective at the Closing as may be reasonably requested by Parent (it being acknowledged that no such pledge may become effective other than concurrently with the Closing Date and the termination of certain of the Company’s existing financing arrangements), and assisting Parent, the Financing Sources and their respective Representatives in obtaining customary payoff letters, Lien releases, instruments of termination or discharge (in each case only to the extent such Indebtedness is required to be repaid in full on the Closing Date or in respect of which a default or event of default would arise as a result of the consummation of the transactions contemplated hereunder) and in each case to be effective upon receipt in cash of the payoff amount;
(vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with the Debt Financing or the Alternative Financing;
(vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the financial statements of the Company provided pursuant to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentation, including by providing customary representation letters, and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including by participating in any accounting due diligence sessions;
(viii) subject to customary confidentiality provisions, provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors;
(ix) provide or cause to be provided any customary certificates or opinions as may reasonably be requested in connection with the Debt Financing and the Alternative Financing; and
(x) provide all reasonably available information about the Company and its Subsidiaries to the extent required under applicable “know your customer” and anti-money laundering rules and regulations, including under the USA PATRIOT Act of 2001.
(b) Notwithstanding Section 6.11(a), (i) neither the Company nor any of its Subsidiaries will be required to pay any commitment or other similar fee or incur, prior to the Closing, any other liability or obligation in connection with the Debt Financing, (ii) none of the Company, its Subsidiaries or their respective officers, directors, employees and Representatives to, provide all cooperation reasonably requested by Parent in connection with the arrangement of Parent's financing of the Merger or advisors will other filings or financings of Parent (the "FINANCING"), including (A) causing appropriate officers and employees to be required available, on a customary basis and on reasonable advance notice, to execute or enter into or perform any agreement meet with prospective lenders and investors in meetings, drafting sessions, due diligence sessions, management presentations, road shows and sessions with rating agencies, (B) assisting with the preparation of materials for rating agency presentations, business projections and financial statements (including any opinionthose required by the SEC), solvency certificate or other deliverableand assisting Parent in preparing offering memoranda, private placement memoranda, prospectuses and similar documents, (C) with respect causing its independent accountants to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior provide reasonable assistance to the Closing (other than authorization letters contemplated by Section 6.11(a)(vii)) and the boards of directors or other equivalent governing bodies of the Company, Parent, Merger Sub or the Surviving Corporation will not be required including providing consent to enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of Parent to prepare and use their audit reports and SAS 100 reviews relating to the Company and its Subsidiaries and to provide any necessary "comfort letters" and (D) causing its attorneys to provide reasonable assistance to Parent, including to provide any necessary and customary legal opinions, (E) obtaining any necessary rating agencies' confirmations or approvals for the Financing and (F) executing and delivering any commitment letters, underwriting or placement agreements, registration statements, pledge and security documents, other definitive financing documents, or other requested certificates or documents, including allowing for a certificate of the chief financial officer of the Company with respect to solvency or other matters. The Company will provide to Parent and its financing sources as may promptly as practicable any audited, unaudited and pro forma and other financial information or data that are reasonably required in connection with the Financing.
(b) Without limiting the foregoing, at the request of Parent, prior to the Effective Time, Company shall use its reasonable best efforts to cooperate with Parent and Merger Sub in obtaining any consents or waivers to, and giving notices of redemption in respect of, any of its Indebtedness, provided that Company shall not be required by to permit any of the Financing Sources pursuant foregoing to the Debt Commitment Letter that are become effective prior to the ClosingEffective Time. At the request of Parent, (iii) nothing herein will obligate the Company shall, and shall cause its Subsidiaries to, use its reasonable best efforts to commence consent solicitations or issuer tender or exchange offers with respect to their respective Indebtedness as and at the times that Parent shall request ("CONSENT/TENDER OFFERS"), in each case with the cooperation of Parent and Merger Sub and using agents chosen by Parent. All Consent/Tender Offers shall be in accordance with applicable Laws and Regulations and shall be on the terms and conditions reasonably specified by Parent; PROVIDED, THAT all Consent/Tender Offers (and all obligations to make any payments to holders of all or any portion of its Subsidiaries any Indebtedness in connection therewith or to provide modify the terms or cause to provisions of any Indebtedness) shall be provided any information or take or cause to be taken any action conditioned upon the consummation of the Merger, and shall terminate immediately upon the termination of this Agreement prior to the extent it would result in a violation Effective Time. In addition, at the request of applicable Law or such Person’s respective organizational documentsParent, loss of any legal privilege or a default, event of default, or acceleration under, or termination of any Contract in effect on the date of this Agreement, and (iv) nothing herein will obligate the Company or shall arrange to repay any of outstanding Indebtedness under its Subsidiaries to take any action that would (x) unreasonably interfere with credit agreement effective at the ongoing operations of the Company or its Subsidiaries or (y) cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement. Parent will, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.11Effective Time.
(c) Parent will indemnify and hold harmless the Company and each of its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) suffered or incurred in connection with any financing or other securities offering of Parent or its Subsidiaries or any assistance or activities provided in connection therewith; provided that Parent will have no obligation to indemnify or hold harmless any such Person to the extent that any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are suffered or incurred as a result of the gross negligence, willful misconduct or fraud of the Company as determined by a court of competent jurisdiction in a final non-appealable verdict.
(d) In no event will the receipt or availability of any funds or financing (including the Debt Financing contemplated by the Debt Commitment Letter) by or to Parent or any other financing transaction be a condition to any of the obligations of Parent hereunder.
Appears in 1 contract
Sources: Merger Agreement (Service Corporation International)
Financing Assistance. (a) The Prior to the Closing, the Company willshall, and will shall cause its the Company Subsidiaries and its Representatives to, at the expense of Parent, and shall use its and their reasonable best efforts to provide such cooperation as may be reasonably requested by Parent, to assist Parent in arranging, obtaining or syndicating the Debt Financing, the Alternative Financing or any debt or equity financing undertaken in any form in replacement of all or any portion of such Debt Financing or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality of the foregoing, upon the reasonable request by Parent, cause the Company will and will cause its Subsidiaries and its Representatives to, provide to use its and their reasonable best efforts to:
(i) as promptly as reasonably practicable provide information (financial or otherwise) relating to the Company to the Financing Sources (including information to be used in the preparation of an information package regarding the business, operations, financial condition, financial projections and prospects of Parent and the Company customary for the completion of such financing) to the extent cooperation reasonably requested by Parent or in connection with the arrangement of the Financing Sources to prepare customary offering or information documents to be used for the completion of the Debt Financing, including participation in any drafting sessions;
(ii) reasonably cooperate and assist provided that such requested cooperation does not unreasonably interfere with the due diligence, ratings agency process and marketing efforts of Parent, its Representatives and the Financing Sources, including participation by officers and other representatives, with appropriate seniority and expertise, in a reasonable number of investor meetings, presentations, sessions with ratings agencies, due diligence sessions and road shows, at times and at locations reasonably requested by Parent and upon reasonable advance notice;
(iii) reasonably assist in preparing customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, lender presentations, financial statements, private placement memoranda, prospectuses, filings with the SEC and other similar documents, including delivery of and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or the Alternative Financing of (A) audited consolidated balance sheets and related audited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended at least 75 days prior to the Closing Date (and internal control reports and audit reports for such financial statements, which will not be subject to any “going concern” qualifications), (B) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, and (C) all other historical financial and other information regarding the Company reasonably necessary to permit Parent to prepare pro forma financial statements required or customary for the Debt Financing and a securities offering contemplated by the Debt Financing or the Alternative Financing;
(iv) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives ongoing operations of the Company and its Subsidiaries), documents including:
(a) participating in a customary and information relating to reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies, including direct contact between senior management and Representatives of the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Company Subsidiaries and the Financing Sources or as may be requested by and potential lenders and investors in the SEC Debt Financing;
(b) assisting with the preparation of customary materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the completion of the Debt Financing or Alternative Financing;
(v) reasonably facilitate the pledge of collateral required under the Debt Commitment Letter to be delivered and become effective at the Closing as may be reasonably requested by Parent (it being acknowledged that no such pledge may become effective other than concurrently with the Closing Date and the termination of certain of the Company’s existing financing arrangements), and assisting Parent, the Financing Sources providing reasonable and their respective Representatives in obtaining customary payoff letters, Lien releases, instruments of termination or discharge (in each case only to the extent such Indebtedness is required to be repaid in full on the Closing Date or in respect of which a default or event of default would arise as a result of the consummation of the transactions contemplated hereunder) and in each case to be effective upon receipt in cash of the payoff amount;
(vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with the Debt Financing or the Alternative Financing;
(vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the financial statements of the Company provided pursuant to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentation, including by providing customary representation letters, and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including by participating in any accounting due diligence sessions;
(viii) subject to customary confidentiality provisions, provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders and other financing sources and containing customary information; provided, that any private placement memoranda or investorsprospectuses shall contain disclosure and financial statements reflecting the Surviving Corporation and/or its Subsidiaries as the obligor; and provided, further, that any such prospective lenders and financing sources shall have agreed to keep such information confidential;
(ixc) provide executing and delivering (or cause to be provided coordinating the execution and delivery of) any customary certificates or opinions as may reasonably be requested definitive financing documents in connection with the Debt Financing reasonably requested by Parent, including indentures and definitive credit agreement documents (including those that reflect any "market flex" provisions set forth in the agreements evidencing the Debt Financing Commitment), pledge and security documents, guarantee and collateral documents, officer's certificates (including relating to solvency matters of the Company before giving effect to the incurrence of the Debt Financing and the Alternative consummation of the transactions contemplated by this Agreement and such Debt Financing) and documents facilitating the pledge of collateral and guarantee of the Debt Financing (including cooperation in connection with the pay-off of the Company's existing indebtedness and the release of related Liens); provided, that such documents will not take effect until, and will be conditioned upon the occurrence of, the Effective Time;
(d) furnishing Parent and the Financing Sources as promptly as reasonably practicable with (i) all consolidated financial statements and other pertinent information related solely to the Company and the Company Subsidiaries required by the Financing Commitments and all financial statements, financial data, audit reports and other information related solely to the Company and the Company Subsidiaries required by Regulation S-X (other than Sections 3-10 and 3-16) and Regulation S-K under the Securities Act and of type and form customarily included in an offering memorandum pursuant to Rule 144A under the Securities Act to consummate the offering(s) of debt securities contemplated by the Financing Commitments, but without the Company having to prepare separate financial statements for any Company Subsidiary or changing any fiscal period and (ii) during the period commencing on the twenty-third (23rd) Business Day immediately prior to July 13, 2011 and ending on the filing of the 2011 10-K, preliminary financial results of the Company and the Company Subsidiaries for the fiscal year ended May 31, 2011, including a preliminary consolidated balance sheet, preliminary income statement and preliminary cash flow statement (and, if available, any preliminary audit adjustments and notes thereto) (all such information in this clause (d), the "Required Financial Information"); provided, however, that Required Financial Information shall not include, and Parent shall be solely responsible for, the preparation of pro forma financial information including, pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any pro forma financial information; provided, further, however, that Required Financial Information shall not include any of the information required by Items 10-14 of Form 10-K;
(e) notifying Parent and the Financing Sources of any material changes in any preliminary financial results described in clause (d)(ii) above as promptly as practicable after the Company first becomes aware of such changes;
(f) using reasonable best efforts to obtain accountants' comfort letters and consents as reasonably requested by Parent, solely with respect to the Required Financial Information;
(g) providing financial and other pertinent information regarding the Company and the Company Subsidiaries as may be reasonably requested by Parent, including unaudited monthly financial statements for the Company and the Company Subsidiaries on a consolidated basis (excluding footnotes), to the extent the Company customarily prepares such financial statements, and financial projections (to the extent available) within the time from such statements are prepared;
(h) reasonably cooperating to (i) permit the lead arrangers in the Financing to evaluate the Company's and Company Subsidiaries' current assets, cash management and accounting systems, and policies and procedures relating thereto for the purpose of establishing collateral arrangements; provided, that any such lead arrangers shall have agreed to keep such information confidential, and (ii) 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 will not become active or take effect until the Effective Time;
(i) requesting customary payoff letters, Lien terminations and instruments of discharge to be delivered to allow for the payoff, discharge and termination in full on the Closing Date of all indebtedness and Liens under indebtedness of the Company required to be repaid as of the Effective Time by the terms of any Debt Financing; and
(xj) provide furnishing Parent and the Financing Sources promptly with all reasonably available documentation and other information about the Company and its Subsidiaries required by any Governmental Entity with respect to the extent required any Debt Financing under applicable “"know your customer” " and anti-money laundering rules and regulations, including under the USA PATRIOT Act of 2001.
Act, and in any event at least five (b5) Notwithstanding days prior to the Closing Date. Nothing in this Section 6.11(a), 6.7 shall require such cooperation to the extent it would (i) neither require the Company nor any of its Subsidiaries will be required to agree to pay any commitment fees, reimburse any expenses or other similar fee or incurgive any indemnities, prior (ii) require the Company to the Closing, incur any other liability or obligation in connection with the Debt Financing, (ii) none of the Company, its Subsidiaries or their respective officers, directors, employees or advisors will be required to execute or enter into or perform any agreement (including any opinion, solvency certificate or other deliverable) with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Closing Effective Time (other than authorization letters contemplated by Section 6.11(a)(vii)) and the boards of directors or other equivalent governing bodies of the Companyit being understood, Parenthowever, Merger Sub or the Surviving Corporation will not be required to enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of that the Company shall bear all costs and expenses of its Subsidiaries as may annual audit but not the costs of any comfort letter (which shall be required borne by the Financing Sources pursuant to the Debt Commitment Letter that are effective prior to the ClosingParent)), (iii) nothing herein will obligate the Company cause any representation or any of its Subsidiaries to provide or cause warranty in this Agreement to be provided any information or take or cause to be taken any action to the extent it would result in a violation of applicable Law or such Person’s respective organizational documents, loss of any legal privilege or a default, event of defaultbreached, or acceleration under, or termination of any Contract in effect on the date of this Agreement, and (iv) nothing herein will obligate the Company or any of its Subsidiaries to take any action that would (x) unreasonably interfere with the ongoing operations of the Company or its Subsidiaries or (y) cause any condition to the Closing set forth herein in Article VII to not fail to be satisfied or otherwise cause any breach of this Agreement. Parent willshall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any Company Subsidiary and their Representatives in connection with such cooperation at the request of Parent. The Company, its Subsidiaries in satisfying its obligations under this Section 6.11.
(c) Parent will indemnify and hold harmless the Company and each of its Subsidiaries Affiliates and their respective Representatives from shall be indemnified and held harmless by Parent and Merger Sub for and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid suffered or payable incurred by them in connection with the arrangement of the Debt Financing (other than arising from (x) fraud or intentional misrepresentation or from misstatements or omissions in respect or (y) written historical information of the type prepared by the Company and the Company Subsidiaries in the ordinary course of business that is provided by the Company or any thereofCompany Subsidiary; provided, that this clause (y) suffered shall not apply to any preliminary financial results or incurred preliminary financial statements described in clause (d)(ii) above) to the fullest extent permitted by applicable Law and with appropriate contribution to the extent such indemnification is not available, and the Limited Guarantees shall guarantee the obligations of Parent pursuant to this paragraph of this Section 6.7. The Company hereby consents to the use of its and the Company Subsidiaries' logos in connection with the Debt Financing; provided, that logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any financing of its Subsidiaries or other securities offering the reputation or goodwill of Parent the Company or any of its Subsidiaries or any assistance or activities provided in connection therewith; provided that Parent will have no obligation to indemnify or hold harmless any such Person to the extent that any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are suffered or incurred as a result of the gross negligence, willful misconduct or fraud of the Company as determined by a court of competent jurisdiction in a final non-appealable verdicttheir respective intellectual property rights.
(d) In no event will the receipt or availability of any funds or financing (including the Debt Financing contemplated by the Debt Commitment Letter) by or to Parent or any other financing transaction be a condition to any of the obligations of Parent hereunder.
Appears in 1 contract
Financing Assistance. (a) The Company willPrior to the Closing, Seller agrees to provide, and will shall cause its Subsidiaries to provide, and its Representatives to, at the expense of Parent, shall use its and their reasonable best efforts to provide such cause its Representatives to provide, all customary cooperation (including with respect to timeliness) in connection with the arrangement of the financing contemplated by the Commitment Letter as may be reasonably requested by Parent▇▇▇▇▇, to assist Parent in arranging, obtaining or syndicating the Debt Financing, the Alternative Financing or any debt or equity financing undertaken in any form in replacement of all or any portion of such Debt Financing or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality of the foregoing, upon the reasonable request by Parent, the Company will and will cause its Subsidiaries and its Representatives to use its and their reasonable best efforts to:
including (i) as promptly as reasonably practicable provide information (financial or otherwise) relating to the Company to the Financing Sources (including information to be used in the preparation of an information package regarding the business, operations, financial condition, financial projections and prospects of Parent and the Company customary for the completion of such financing) to the extent reasonably requested by Parent or the Financing Sources to prepare customary offering or information documents to be used for the completion of the Debt Financing, including participation in any drafting sessions;
(ii) reasonably cooperate and assist with the due diligence, ratings agency process and marketing efforts of Parent, its Representatives and the Financing Sources, including participation by officers and other representatives, with appropriate seniority and expertise, participating in a reasonable number of investor meetings, presentations, sessions with ratings agenciesroad shows, drafting sessions, due diligence sessions and road showssessions with prospective lenders, investors and ratings agencies that are customary for financings of a type similar to the financing contemplated by the Commitment Letter; (ii) assisting in a commercially reasonable manner Buyer and the Financing Sources in the preparation of any lender presentations, bank information memoranda and similar documents reasonably requested by Buyer in connection with the financing contemplated by the Commitment Letter at times and at locations reasonably requested by Parent and upon reasonable advance notice;
mutually agreed; (iii) reasonably assist in preparing customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, lender presentations, financial statements, private placement memoranda, prospectuses, filings cooperating with the SEC marketing efforts of Buyer and other similar documents, including delivery the Financing Sources for any of and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or the Alternative Financing of (A) audited consolidated balance sheets and related audited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended at least 75 days prior to the Closing Date (and internal control reports and audit reports for such financial statements, which will not be subject to any “going concern” qualifications), (B) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, and (C) all other historical financial and other information regarding the Company reasonably necessary to permit Parent to prepare pro forma financial statements required or customary for the Debt Financing and a securities offering financing contemplated by the Debt Financing or the Alternative Financing;
Commitment Letter; (iv) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives assisting in the preparation of the Company and its Subsidiaries, documents and information relating to the Company Financing, including any customary credit agreements, indentures and its Subsidiariespledge and security documents and otherwise reasonably facilitating the granting of a security interest (and perfection thereof) in collateral, in each caseguarantees, other definitive financing documents or other certificates, customary closing certificates and documents as may be reasonably requested by Parent▇▇▇▇▇ and assisting in the negotiation of any such agreements and other documents; provided, that any obligations contained in all such agreements and documents shall be subject to the Financing Sources or as may be requested by the SEC in connection with the completion occurrence of the Debt Financing or Alternative Financing;
Closing and effective no earlier than the Closing; and (v) reasonably using reasonable best efforts to facilitate the pledge obtaining of collateral required under the Debt Commitment Letter to be delivered and become effective at the Closing as may be reasonably requested by Parent (it being acknowledged that no such pledge may become effective other than concurrently with the Closing Date and the termination of certain of the Company’s existing financing arrangements), and assisting Parent, the Financing Sources and their respective Representatives in obtaining customary payoff letters, Lien releases, lien terminations and instruments of termination or discharge (in each case only to be delivered at and subject to the extent such Indebtedness is required to be repaid in full Closing providing for the payoff, discharge and termination on the Closing Date or in respect of which a default or event of default would arise as a result all Indebtedness of the consummation of the transactions Business contemplated hereunder) and in each case by this Agreement to be effective upon receipt in cash of paid off, discharged and terminated on the payoff amount;
(vi) obtain Closing Date. Customary cooperation shall not include taking any necessary consents from the Company’s independent public accounting firm in connection actions that would unreasonably interfere with the Debt Financing ongoing business or operations of Seller and its Subsidiaries. Notwithstanding the Alternative Financing;
(vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financingforegoing, (Av) obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion none of Seller or incorporation of their audit reports with respect to the financial statements of the Company provided pursuant to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentation, including by providing customary representation letters, and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including by participating in any accounting due diligence sessions;
(viii) subject to customary confidentiality provisions, provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors;
(ix) provide or cause to be provided any customary certificates or opinions as may reasonably be requested in connection with the Debt Financing and the Alternative Financing; and
(x) provide all reasonably available information about the Company and its Subsidiaries to the extent required under applicable “know your customer” and anti-money laundering rules and regulations, including under the USA PATRIOT Act of 2001.
(b) Notwithstanding Section 6.11(a), (i) neither the Company nor any of its Subsidiaries will shall be required to pay any commitment fees or other similar fee expenses or incur, incur prior to the Closing, Effective Time any other liability or obligation in connection with the Debt Financingfinancings contemplated by the Commitment Letter, (iiw) none of the CompanySeller, its Subsidiaries or their respective officers, directors, directors or employees or advisors will shall be required to execute or enter into or perform any agreement (including any opinion, solvency certificate or other deliverable) with respect to the Debt Financing financing contemplated by the Commitment Letters that is not contingent upon the Closing occurring or that would be effective prior to the Closing Effective Time (other than authorization letters contemplated by Section 6.11(a)(vii)) and for the avoidance of doubt, the boards of directors or other equivalent governing bodies of the Company, Parent, Merger Sub or the Surviving Corporation will not be required to Buyer shall enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company Seller and its Subsidiaries as may be required by the Financing Sources lenders pursuant to the Debt Commitment Letter at, or as of, the Closing), (x) Seller shall not be required to make any representation, warranties or certifications as to which, after Seller’s use of reasonable best efforts to cause such representation, warranty or certification to be true, Seller has in its good faith determined that are effective such representation, warranty or certification is not true, (y) Seller shall not be required to become subject to any obligations or liabilities with respect to such agreements or documents prior to the Closing, and (iiiz) nothing herein will shall obligate the Company Seller or any of its Subsidiaries to provide provide, or cause to be provided provided, any legal opinion by its counsel, or to provide any information or take or cause to be taken any action to the extent it would result in a violation of applicable Law or such Person’s respective organizational documents, loss of any legal privilege or a defaultprivilege. For the avoidance of doubt, in no event of default, or acceleration under, or termination of any Contract in effect on the date of this Agreement, and (iv) nothing herein will obligate the Company shall Seller or any of its Subsidiaries to take any action that would (x) unreasonably interfere with the ongoing operations of the Company or its Subsidiaries or (y) cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any in breach of this AgreementSection 5.25(a) because of the failure to deliver, after use of reasonable best efforts to do so, any information that is not prepared in the ordinary course of the Seller’s business and operations at the time requested by ▇▇▇▇▇. Parent will, promptly upon request Seller and its Representatives shall be given a reasonable opportunity to review and comment on any financing documents and any materials that are to be presented during any meetings conducted in connection with the financing contemplated by the CompanyCommitment Letter, reimburse the Company for and Buyer shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Seller and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.11Representatives.
(cb) Parent will Buyer shall indemnify and hold harmless the Company and each of Seller, its Subsidiaries and its and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid suffered or payable incurred by them in connection with the arrangement of the financing contemplated by the Commitment Letter and the performance of their respective obligations under Section 5.25(a) and any information utilized in connection therewith. Whether or in respect not the Closing occurs, Buyer shall, promptly upon written request by ▇▇▇▇▇▇, reimburse Seller and its Subsidiaries for all reasonable and documented out-of- pocket costs and expenses incurred by Seller or its Subsidiaries (including those of any thereofits accountants, consultants, legal counsel, agents and other Representatives) suffered or incurred in connection with any financing or other securities offering of Parent or its Subsidiaries or any assistance or activities provided in connection therewith; provided that Parent will have no obligation to indemnify or hold harmless any such Person to the extent that any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are suffered or incurred as a result of the gross negligence, willful misconduct or fraud of the Company as determined cooperation required by a court of competent jurisdiction in a final non-appealable verdictSection 5.25(a).
(d) In no event will the receipt or availability of any funds or financing (including the Debt Financing contemplated by the Debt Commitment Letter) by or to Parent or any other financing transaction be a condition to any of the obligations of Parent hereunder.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement
Financing Assistance. (a) The Prior to the Closing, the Company willagrees to provide, and will cause its Subsidiaries and its Representatives to, at the expense of Parent, shall use its and their reasonable best efforts to provide such cause each of its Subsidiaries and each of their respective officers, employees and Representatives to provide, to Parent and Merger Sub, all reasonable cooperation as may be reasonably requested by Parent, to assist Parent in arranging, obtaining or syndicating the Debt Financing, the Alternative Financing or any debt or equity financing undertaken in any form in replacement of all or any portion of such Debt Financing or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality of the foregoing, upon the reasonable request by Parent, the Company will and will cause its Subsidiaries and its Representatives to use its and their reasonable best efforts to:
(i) as promptly as reasonably practicable provide information (financial or otherwise) relating to the Company to the Financing Sources (including information to be used in the preparation of an information package regarding the business, operations, financial condition, financial projections and prospects of Parent and the Company customary for the completion of such financing) to the extent reasonably requested by Parent or its Representatives in connection with the Financing Sources to prepare customary offering or information documents to be used for the completion arrangement of the Debt Financing, including participation in any drafting sessions;
Financing (ii) reasonably cooperate and assist provided that such requested cooperation does not unreasonably interfere with the due diligence, ratings agency process and marketing efforts of Parent, its Representatives and the Financing Sources, including participation by officers and other representatives, with appropriate seniority and expertise, in a reasonable number of investor meetings, presentations, sessions with ratings agencies, due diligence sessions and road shows, at times and at locations reasonably requested by Parent and upon reasonable advance notice;
(iii) reasonably assist in preparing customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, lender presentations, financial statements, private placement memoranda, prospectuses, filings with the SEC and other similar documents, including delivery of and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or the Alternative Financing of (A) audited consolidated balance sheets and related audited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended at least 75 days prior to the Closing Date (and internal control reports and audit reports for such financial statements, which will not be subject to any “going concern” qualifications), (B) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, and (C) all other historical financial and other information regarding the Company reasonably necessary to permit Parent to prepare pro forma financial statements required or customary for the Debt Financing and a securities offering contemplated by the Debt Financing or the Alternative Financing;
(iv) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives operations of the Company and its Subsidiaries), including, without limitation, to the extent customary and reasonable for the Debt Financing, (i) participation in a reasonable number of meetings, presentations, due diligence sessions, road shows, sessions with rating agencies and other meetings, including arranging for reasonable direct contact between senior management, representatives and advisors of the Company with representatives of Parent and its Debt Financing Sources, (ii) assisting in the preparation of offering memoranda, private placement memoranda, bank information memoranda, prospectuses, rating agency presentations and similar documents and information reasonably requested by Parent or its representatives in connection with the Debt Financing (including using reasonable best efforts to obtain consents of accountants for use of their reports in any materials relating to the Debt Financing and delivery of one or more customary representation letters), (iii) as promptly as reasonably practicable, furnishing Parent and its Debt Financing Sources with financial and other pertinent information regarding the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources or as may be requested by the SEC in connection with the completion of the Debt Financing or Alternative Financing;
(v) reasonably facilitate the pledge of collateral required under the Debt Commitment Letter to be delivered and become effective at the Closing Subsidiaries as may be reasonably requested by Parent (it being acknowledged that no such pledge may become effective other than concurrently with the Closing Date and the termination of certain of the Company’s existing financing arrangements), and assisting Parent, the its Debt Financing Sources and their respective Representatives in obtaining customary payoff letters, Lien releases, instruments of termination or discharge (in each case only to the extent such Indebtedness is information required to be repaid delivered in full on this clause (iii), the Closing Date “Required Information”), (iv) cooperating with advisors, consultants and accountants of Parent or in respect of which a default or event of default would arise as a result of the consummation of the transactions contemplated hereunder) and in each case to be effective upon receipt in cash of the payoff amount;
(vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with the its Debt Financing or the Alternative Financing;
(vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion or incorporation of their audit reports Sources with respect to the conduct of any examination, appraisal or review of the financial statements condition or any of the assets or liabilities of the Company provided pursuant to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentationSubsidiary, including by providing customary representation for the purpose of establishing collateral eligibility and values, (v) facilitating the securing or pledging of collateral and executing and delivering any pledge and security documents, commitment letters, underwriting or placement agreements or other definitive financing documents, provided that the effectiveness of any collateral or security granted hereunder and any obligations of the Company or any of its Subsidiaries under any such definitive documents shall be contingent upon the occurrence of the Effective Time, (Cvi) cause the Company’s independent public accounting firm to cooperate with Parent furnishing Parent, Merger Sub and its Representatives, including by participating in any accounting due diligence sessions;
(viii) subject Representatives promptly with all documentation and other information required with respect to customary confidentiality provisions, provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors;
(ix) provide or cause to be provided any customary certificates or opinions as may reasonably be requested in connection with the Debt Financing and the Alternative Financing; and
(x) provide all reasonably available information about the Company and its Subsidiaries to the extent required under applicable “know your customer” and anti-money laundering rules and regulations, and (vii) taking all corporate actions reasonably necessary to permit the consummation of the Debt Financing, including under without limitations the USA PATRIOT Act execution and delivery of 2001.
(b) Notwithstanding Section 6.11(a)any other certificates, (i) neither instruments or documents and establishing bank and other accounts, and to permit the proceeds thereof, to be made available to Merger Sub on the Closing Date to consummate the Merger. The Company will periodically update any such Required Information to be included in an offering document to be used in connection with such Debt Financing in order to ensure that such Required Information does not contain any untrue statement of material fact or omit to state any material fact necessary in order to make the statements contained therein not misleading. Neither the Company nor any of its Subsidiaries will shall be required to pay any commitment or other similar fee or incurrequired, prior to under the Closing, any other liability or obligation in connection with the Debt Financing, (ii) none of the Company, its Subsidiaries or their respective officers, directors, employees or advisors will be required to execute or enter into or perform any agreement (including any opinion, solvency certificate or other deliverable) with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Closing (other than authorization letters contemplated by Section 6.11(a)(vii)) and the boards of directors or other equivalent governing bodies of the Company, Parent, Merger Sub or the Surviving Corporation will not be required to enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources pursuant to the Debt Commitment Letter that are effective prior to the Closing, (iii) nothing herein will obligate the Company or any of its Subsidiaries to provide or cause to be provided any information or take or cause to be taken any action to the extent it would result in a violation of applicable Law or such Person’s respective organizational documents, loss of any legal privilege or a default, event of default, or acceleration under, or termination of any Contract in effect on the date provisions of this Agreement, and (iv) nothing herein will obligate the Company or any of its Subsidiaries to take any action that would (x) unreasonably interfere with the ongoing operations of the Company or its Subsidiaries or (y) cause any condition to the Closing set forth herein to not be satisfied Section 6.17 or otherwise cause any breach of this Agreement. Parent will, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.11.
(c) Parent will indemnify and hold harmless the Company and each of its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) suffered or incurred in connection with any financing or other securities offering of Parent or its Subsidiaries or any assistance or activities provided in connection therewith; provided that Parent will have no obligation to indemnify or hold harmless any such Person to the extent that any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are suffered or incurred as a result of the gross negligence, willful misconduct or fraud of the Company as determined by a court of competent jurisdiction in a final non-appealable verdict.
(d) In no event will the receipt or availability of any funds or financing (including the Debt Financing contemplated by the Debt Commitment Letter) by or to Parent or any other financing transaction be a condition to any of the obligations of Parent hereunder.Financing,
Appears in 1 contract
Financing Assistance. (a) The From the date hereof until the Effective Time, the Company willand its Subsidiaries shall, and will cause its Subsidiaries and its Representatives to, at the expense of Parent, shall use its and their reasonable best efforts to provide such cooperation as may be reasonably requested by Parent, to assist Parent in arranging, obtaining or syndicating the Debt Financing, the Alternative Financing or any debt or equity financing undertaken in any form in replacement of all or any portion of such Debt Financing or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality of the foregoing, upon the reasonable request by Parent, the Company will and will cause its Subsidiaries and its Representatives to use its and their reasonable best efforts to:
(i) as promptly as reasonably practicable provide information (financial or otherwise) relating to the Company to the Financing Sources (including information to be used in the preparation of an information package regarding the business, operations, financial condition, financial projections and prospects of Parent and the Company customary for the completion of such financing) to the extent reasonably requested by Parent or the Financing Sources to prepare customary offering or information documents to be used for the completion of the Debt Financing, including participation in any drafting sessions;
(ii) reasonably cooperate and assist with the due diligence, ratings agency process and marketing efforts of Parent, its Representatives and the Financing Sources, including participation by officers and other representatives, with appropriate seniority and expertise, in a reasonable number of investor meetings, presentations, sessions with ratings agencies, due diligence sessions and road shows, at times and at locations reasonably requested by Parent and upon reasonable advance notice;
(iii) reasonably assist in preparing customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, lender presentations, financial statements, private placement memoranda, prospectuses, filings with the SEC and other similar documents, including delivery of and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or the Alternative Financing of (A) audited consolidated balance sheets and related audited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended at least 75 days prior to the Closing Date (and internal control reports and audit reports for such financial statements, which will not be subject to any “going concern” qualifications), (B) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, and (C) all other historical financial and other information regarding the Company reasonably necessary to permit Parent to prepare pro forma financial statements required or customary for the Debt Financing and a securities offering contemplated by the Debt Financing or the Alternative Financing;
(iv) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources or as may be requested by the SEC in connection with the completion of the Debt Financing or Alternative Financing;
(v) reasonably facilitate the pledge of collateral required under the Debt Commitment Letter to be delivered and become effective at the Closing as may be reasonably requested by Parent (it being acknowledged that no such pledge may become effective other than concurrently with the Closing Date and the termination of certain of the Company’s existing financing arrangements), and assisting Parent, the Financing Sources and their respective Representatives in obtaining customary payoff letters, Lien releases, instruments of termination or discharge (in each case only to the extent such Indebtedness is required to be repaid in full on the Closing Date or in respect of which a default or event of default would arise as a result of the consummation of the transactions contemplated hereunder) and in each case to be effective upon receipt in cash of the payoff amount;
(vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with the Debt Financing or the Alternative Financing;
(vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the financial statements of the Company provided pursuant to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentation, including by providing customary representation letters, and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including by participating in any accounting due diligence sessions;
(viii) subject to customary confidentiality provisions, provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors;
(ix) provide or cause to be provided any customary certificates or opinions as may reasonably be requested in connection with the Debt Financing and the Alternative Financing; and
(x) provide all reasonably available information about the Company and its Subsidiaries to the extent required under applicable “know your customer” and anti-money laundering rules and regulations, including under the USA PATRIOT Act of 2001.
(b) Notwithstanding Section 6.11(a), (i) neither the Company nor any of its Subsidiaries will be required to pay any commitment or other similar fee or incur, prior to the Closing, any other liability or obligation in connection with the Debt Financing, (ii) none of the Company, its Subsidiaries or their respective officers, directors, employees and Representatives to, provide all cooperation reasonably requested by Parent in connection with the arrangement of Parent’s financing of the Merger or advisors will other filings or financings of Parent (the “Financing”), including (A) causing appropriate officers and employees to be required available, on a customary basis and on reasonable advance notice, to execute or enter into or perform any agreement meet with prospective lenders and investors in meetings, drafting sessions, due diligence sessions, management presentations, road shows and sessions with rating agencies, (B) assisting with the preparation of materials for rating agency presentations, business projections and financial statements (including any opinionthose required by the SEC), solvency certificate or other deliverableand assisting Parent in preparing offering memoranda, private placement memoranda, prospectuses and similar documents, (C) with respect causing its independent accountants to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior provide reasonable assistance to the Closing (other than authorization letters contemplated by Section 6.11(a)(vii)) and the boards of directors or other equivalent governing bodies of the Company, Parent, Merger Sub or the Surviving Corporation will not be required including providing consent to enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of Parent to prepare and use their audit reports and SAS 100 reviews relating to the Company and its Subsidiaries and to provide any necessary “comfort letters” and (D) causing its attorneys to provide reasonable assistance to Parent, including to provide any necessary and customary legal opinions, (E) obtaining any necessary rating agencies’ confirmations or approvals for the Financing and (F) executing and delivering any commitment letters, underwriting or placement agreements, registration statements, pledge and security documents, other definitive financing documents, or other requested certificates or documents, including allowing for a certificate of the chief financial officer of the Company with respect to solvency or other matters. The Company will provide to Parent and its financing sources as may promptly as practicable any audited, unaudited and pro forma and other financial information or data that are reasonably required in connection with the Financing.
(b) Without limiting the foregoing, at the request of Parent, prior to the Effective Time, Company shall use its reasonable best efforts to cooperate with Parent and Merger Sub in obtaining any consents or waivers to, and giving notices of redemption in respect of, any of its Indebtedness, provided that Company shall not be required by to permit any of the Financing Sources pursuant foregoing to the Debt Commitment Letter that are become effective prior to the ClosingEffective Time. At the request of Parent, (iii) nothing herein will obligate the Company shall, and shall cause its Subsidiaries to, use its reasonable best efforts to commence consent solicitations or issuer tender or exchange offers with respect to their respective Indebtedness as and at the times that Parent shall request (“Consent/Tender Offers”), in each case with the cooperation of Parent and Merger Sub and using agents chosen by Parent. All Consent/Tender Offers shall be in accordance with applicable Laws and Regulations and shall be on the terms and conditions reasonably specified by Parent; provided, that all Consent/Tender Offers (and all obligations to make any payments to holders of all or any portion of its Subsidiaries any Indebtedness in connection therewith or to provide modify the terms or cause to provisions of any Indebtedness) shall be provided any information or take or cause to be taken any action conditioned upon the consummation of the Merger, and shall terminate immediately upon the termination of this Agreement prior to the extent it would result in a violation Effective Time. In addition, at the request of applicable Law or such Person’s respective organizational documentsParent, loss of any legal privilege or a default, event of default, or acceleration under, or termination of any Contract in effect on the date of this Agreement, and (iv) nothing herein will obligate the Company or shall arrange to repay any of outstanding Indebtedness under its Subsidiaries to take any action that would (x) unreasonably interfere with credit agreement effective at the ongoing operations of the Company or its Subsidiaries or (y) cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement. Parent will, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.11Effective Time.
(c) Parent will indemnify and hold harmless the Company and each of its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) suffered or incurred in connection with any financing or other securities offering of Parent or its Subsidiaries or any assistance or activities provided in connection therewith; provided that Parent will have no obligation to indemnify or hold harmless any such Person to the extent that any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are suffered or incurred as a result of the gross negligence, willful misconduct or fraud of the Company as determined by a court of competent jurisdiction in a final non-appealable verdict.
(d) In no event will the receipt or availability of any funds or financing (including the Debt Financing contemplated by the Debt Commitment Letter) by or to Parent or any other financing transaction be a condition to any of the obligations of Parent hereunder.
Appears in 1 contract
Financing Assistance. (a) The Company will, and will cause its Subsidiaries and its Representatives to, at the expense of Parent, use its and their reasonable best efforts to provide such cooperation as may be reasonably requested by Parent, to assist Parent in arranging, obtaining or syndicating In connection with the Debt Financing, prior to the Alternative Financing or any debt or equity financing undertaken in any form in replacement of all or any portion of such Debt Financing or Alternative Financing or otherwise for the purposes of financing the Merger Consideration and the other Required Payments. Without limiting the generality of the foregoing, upon the reasonable request by ParentClosing, the Company will and will shall use commercially reasonable efforts to provide, or cause its Subsidiaries and its Representatives representatives to use its and their reasonable best efforts to:
(i) as promptly as reasonably practicable provide information (financial or otherwise) relating provide, to the Company to the Financing Sources (including information to be used in the preparation of an information package regarding the business, operations, financial condition, financial projections and prospects of Parent and the Company Sub, at Parent’s sole expense, customary for the completion of such financing) to the extent cooperation reasonably requested by Parent or and Sub that is necessary in connection with the Financing Sources to prepare customary offering or information documents to be used for the completion arrangement, and consummation of the Debt Financing, including participation using commercially reasonable efforts to (in any each case, to the extent reasonably requested):
(i) participate in a reasonable number of meetings, due diligence sessions, drafting sessionssessions and sessions between senior management and prospective lenders and provide financial and other information customarily required in connection with bank debt financings;
(ii) reasonably cooperate provide reasonable and assist customary assistance with the due diligencepreparation, ratings agency process execution and marketing efforts delivery of Parent, its Representatives and the Financing Sourcesdocuments customarily required in connection with bank debt financings, including participation by officers the solvency certificate, guarantee and other representativescollateral documents, with appropriate seniority and expertise, in a reasonable number facilitating the pledging of investor meetings, presentations, sessions with ratings agencies, due diligence sessions and road shows, at times and at locations reasonably requested by Parent and upon reasonable advance noticecollateral;
(iii) reasonably assist in preparing customary prospectuses, offering memoranda, confidential information memoranda, rating agency presentations, lender presentations, financial statements, private placement memoranda, prospectuses, filings with the SEC provide all documentation and other similar documents, including delivery of and consenting to the inclusion or incorporation in any SEC filing related to the Debt Financing or the Alternative Financing of (A) audited consolidated balance sheets and related audited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each of the three fiscal years most recently ended at least 75 days prior to the Closing Date (and internal control reports and audit reports for such financial statements, which will not be subject to any “going concern” qualifications), (B) unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income, stockholders’ equity and cash flows of the Company for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, and (C) all other historical financial and other information regarding the Company reasonably necessary to permit Parent to prepare pro forma financial statements required or customary for the Debt Financing and a securities offering contemplated by the Debt Financing or the Alternative Financing;
(iv) make available, on a customary and reasonable basis and upon reasonable notice, appropriate personnel, including Representatives of the Company and its Subsidiaries, documents and information relating to the Company and its Subsidiaries, in each case, as may be reasonably requested by Parent, the Financing Sources or as may be requested by the SEC in connection with the completion of the Debt Financing or Alternative Financing;
(v) reasonably facilitate the pledge of collateral required under the Debt Commitment Letter to be delivered and become effective at the Closing as may be reasonably requested by Parent (it being acknowledged that no such pledge may become effective other than concurrently with the Closing Date and the termination of certain of the Company’s existing financing arrangements), and assisting Parent, the Financing Sources and their respective Representatives in obtaining customary payoff letters, Lien releases, instruments of termination or discharge (in each case only to the extent such Indebtedness is required to be repaid in full on the Closing Date or in respect of which a default or event of default would arise as a result of the consummation of the transactions contemplated hereunder) and in each case to be effective upon receipt in cash of the payoff amount;
(vi) obtain any necessary consents from the Company’s independent public accounting firm in connection with the Debt Financing or the Alternative Financing;
(vii) in connection with any securities offering contemplated as part of the Debt Financing or the Alternative Financing, (A) obtain customary comfort letters from the Company’s independent public accounting firm, (B) cause the Company’s independent public accounting firm to consent to the inclusion or incorporation of their audit reports with respect to the financial statements of the Company provided pursuant to Section 6.11(a)(iii) in any filing or registration statement with the SEC or any prospectus, offering memoranda, private placement memoranda or similar documentation, including Subsidiaries reasonably required by providing customary representation letters, and (C) cause the Company’s independent public accounting firm to cooperate with Parent and its Representatives, including by participating in any accounting due diligence sessions;
(viii) subject to customary confidentiality provisions, provide customary authorization letters to the Financing Sources authorizing the distribution of information to prospective lenders or investors;
(ix) provide or cause to be provided any customary certificates or opinions as may reasonably be requested in connection with the Debt Financing and the Alternative Financing; and
(x) provide all reasonably available information about the Company and its Subsidiaries to the extent required bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including under the USA PATRIOT U.S.A. Patriot Act of 2001.
2001 at least three (b3) Notwithstanding Section 6.11(a), (i) neither the Company nor any of its Subsidiaries will be required to pay any commitment or other similar fee or incur, Business Days prior to the ClosingClosing Date, any in each case as reasonably requested by Parent at least seven (7) Business Days prior to the Closing Date;
(iv) assist Parent in obtaining surveys, legal opinions from local outside counsel and title insurance as reasonably requested by Parent or Sub for the Debt Financing;
(1) permit the prospective lenders involved in the Debt Financing to evaluate the Company and the Company Subsidiaries’ current assets, and cash management and accounting systems, policies and procedures relating thereto, for the purpose of establishing collateral arrangements to the extent reasonable and customary, (2) establish customary bank and other liability or obligation accounts and blocked account agreements and lock box arrangements in connection with the foregoing and (3) permit representatives of the prospective lenders to (A) conduct customary commercial field examinations, customary inventory appraisals and a customary appraisal of the Owned Real Property, and (B) make audits and appraisals delivered for purposes of any credit facility available to Parent for purposes of the Financings;
(vi) to the extent timely requested by Parent and required under the Debt FinancingFinancing Commitment Letters, obtain documents reasonably requested by Parent or its Debt Financing Sources relating to the repayment of the existing indebtedness of the Company and the Company Subsidiaries and the release of related liens, including customary payoff letters in form and substance satisfactory to Parent;
(iivii) none cause the taking of corporate and other actions by the Company and its Subsidiaries reasonably necessary to permit the consummation of the Debt Financing on the Closing Date, it being understood that no such corporate or other action will take effect prior to the Closing and the Company Board will not approve the Financing prior to the Closing Date;
(viii) provide financial statements for quarter ended on July 1, 2017 as promptly as possible after the date thereof, but in no event later than July 24, 2017;
(ix) prevent the issuance, offer, placement, or arrangement of any debt securities or commercial bank or other credit facilities (excluding the indebtedness and/or obligations contemplated by or otherwise permitted under the Debt Financing Commitment Letters) by or on behalf of the Company or any of its Subsidiaries; and
(x) supplement the written information (other than information of a general economic or industry-specific nature) concerning the Company, its Subsidiaries or their respective officers, directors, employees or advisors will be required to execute or enter into or perform any agreement (including any opinion, solvency certificate or other deliverable) with respect to the Debt Financing that is not contingent upon the Closing occurring or that would be effective prior to the Closing (other than authorization letters transactions contemplated by Section 6.11(a)(vii)) and the boards of directors or other equivalent governing bodies of the Company, Parent, Merger Sub or the Surviving Corporation will not be required to enter into or provide any resolutions, consents, approvals or other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the Financing Sources pursuant to the Debt Commitment Letter that are effective prior to the Closing, (iii) nothing herein will obligate the Company or any of its Subsidiaries to provide or cause to be provided any information or take or cause to be taken any action to the extent it would result in a violation of applicable Law or such Person’s respective organizational documents, loss of any legal privilege or a default, event of default, or acceleration under, or termination of any Contract in effect on the date of this Agreement, and (iv) nothing herein will obligate the Company or any of its Subsidiaries to take any action that would (x) unreasonably interfere with the ongoing operations of the Company or its Subsidiaries or (y) cause any condition to the Closing set forth herein to not be satisfied or otherwise cause any breach of this Agreement. Parent will, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in satisfying its obligations under this Section 6.11.
(c) Parent will indemnify and hold harmless the Company and each of its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) suffered or incurred in connection with any financing or other securities offering of Parent or its Subsidiaries or any assistance or activities provided in connection therewith; provided that Parent will have no obligation to indemnify or hold harmless any such Person hereby to the extent that any such liabilitiesinformation contains any material misstatement of fact or omits to state any material fact necessary to make such information, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties are suffered or incurred taken as a result of the gross negligencewhole, willful misconduct or fraud of the Company as determined by a court of competent jurisdiction not misleading in a final non-appealable verdictany material respect promptly after gaining knowledge thereof.
(d) In no event will the receipt or availability of any funds or financing (including the Debt Financing contemplated by the Debt Commitment Letter) by or to Parent or any other financing transaction be a condition to any of the obligations of Parent hereunder.
Appears in 1 contract
Sources: Merger Agreement (West Marine Inc)