Acquiror Financing. (a) The Acquiror will use commercially reasonable best efforts to take all actions reasonably necessary, proper or advisable to obtain the Financing on the terms and conditions described in the Bridge Loan Agreement, including using commercially reasonable best efforts (i) to maintain in effect the Bridge Loan Agreement in accordance with its terms and subject to the conditions there in and enforce its rights thereunder and (ii) to satisfy (or cause its Subsidiaries to satisfy) on a timely basis (taking into account the expected timing of the Marketing Period) all conditions to obtaining the Financing that are applicable to it as set forth in the Bridge Loan Agreement. In the event that any portion of the Financing becomes unavailable on the terms and conditions set forth in the Bridge Loan Agreement, the Acquiror shall promptly notify the Parent of such unavailability and, to its knowledge, the reason therefor, and the Acquiror shall use its commercially reasonable best efforts to obtain, as promptly as practicable following the occurrence of such event, any such portion from alternative sources (“Alternative Financing”) in an amount sufficient, together with its other then available resources, to finance the Cash Consideration and to consummate the transactions contemplated hereby and on conditions to funding that are not materially less favorable, taken as a whole, to the Parent or the Acquiror (in the reasonable judgment of the Acquiror) than the conditions to funding set forth in the Bridge Loan Agreement. The Acquiror shall deliver to the Parent true and complete copies of all agreements pursuant to which any such alternative source shall have committed to provide the Acquiror with the Alternative Financing (except for customary non-disclosure agreements and except that fee letters may be redacted in a customary manner to remove the fee amounts and other terms that could not reasonably be expected to adversely affect the conditionality, enforceability, termination or aggregate principal amount of the Alternative Financing). The Acquiror shall not agree to or permit, without the Parent’s prior written consent, any amendment, supplement or other modification of, or any waiver of any of its rights under, or the designation of a subsidiary borrower pursuant to, the Bridge Loan Agreement if such amendment, supplement, modification, waiver or designation of borrower (A) reduces the aggregate amount of the Financing, or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the Financing in a manner that would reasonably be expected to (I) materially delay or prevent the Closing, (II) make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur, (III) reduce the aggregate amount of the commitments available under the Bridge Loan Agreement (except pursuant to the terms thereof in connection with any equity or debt offering or asset sale; it being understood that the Acquiror shall not optionally reduce the commitments under the Bridge Loan Agreement to an amount below the amount that is required, together with cash on hand and amounts available to be drawn under the Existing Revolving Credit Agreement, to pay the Cash Consideration, consummate the transactions contemplated by this Agreement and the other Transaction Agreements and satisfy all of the obligations of the Acquiror under this Agreement), (IV) adversely impact the ability of the Acquiror to consummate the transactions contemplated by this Agreement or the likelihood of the Acquiror doing so or (V) adversely impact the ability of the Acquiror to enforce its rights against other parties to the Bridge Loan Agreement or the other definitive agreements relating to the Financing. The Acquiror shall promptly deliver to the Parent copies of any amendment, supplement or other modification of the Bridge Loan Agreement. The Acquiror shall give the Parent prompt written notice of (x) any material breach by any party to the Bridge Loan Agreement of which the Acquiror becomes aware or any termination of the Bridge Loan Agreement, or (y) any material dispute or disagreement between or among the Acquiror, on the one hand, and the Financing Sources on the other hand. If at any time for any reason the Acquiror believes in good faith that it will not be able to obtain all or any portion of the Financing contemplated by the Bridge Loan Agreement, the Acquiror shall deliver prompt written notice to the Parent. The Acquiror shall keep the Parent informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Financing and provide to the Parent copies of all related documents promptly upon the request of the Parent (which may be redacted, if applicable, in a customary manner to remove the fee amounts and other terms that could not reasonably be expected to adversely affect the conditionality, enforceability, termination or aggregate principal amount of the Financing). In no event shall the unavailability of any funds or financing (including, for the avoidance of doubt, the Financing) by or to the Acquiror excuse the Acquiror from performance of any of its obligations hereunder. Notwithstanding anything to the contrary, the obligations of the Acquiror in this Section 5.14(a) relating to the Bridge Credit Agreement (or any Alternative Financing) shall not apply from and after the date on which the Acquiror shall have generated gross proceeds from Financing other than under the Bridge Loan Agreement of at least the aggregate amount of commitments under the Bridge Loan Agreement on the date hereof. (b) The Parent agrees to use its commercially reasonable best efforts, and shall cause its Subsidiaries and their respective Representatives to use their commercially reasonable best efforts, to provide such customary cooperation as may be reasonably requested by the Acquiror to assist the Acquiror in the arrangement of the Financing, including using commercially reasonable best efforts in (i) assisting with the preparation of Offering Documents (and any supplements thereto), (ii) preparing and furnishing to the Acquiror and the Financing Sources as promptly as practicable all Required Information and all other available pertinent information and disclosures relating to the Company and the Transferred Subsidiaries (including UG Asia and its Subsidiaries) (including their businesses, operations, financial projections and prospects) as may be reasonably requested by the Acquiror to assist in preparation of the Offering Documents and any supplements thereto, including any financial statements, data or other information (A) of the type required by Regulation S-X or Regulation S-K, or (B) for the Acquiror to prepare pro forma financial information and for the Company’s independent auditors to provide comfort letters (including customary “negative assurances”), (iii) having appropriate members of senior management of the Company and its Representatives to participate in a reasonable number of presentations, road shows, due diligence sessions, drafting sessions, customary meetings and sessions with ratings agencies in connection with the Financing and reasonably cooperating with marketing efforts related to the Financing, including direct contact between such senior management and Representatives of the Company and the Transferred Subsidiaries and the Financing Sources and potential lenders and investors in the Financing, (iv) engaging the Company’s independent auditors using commercially reasonable best efforts to cause such auditors to deliver comfort letters and consents in connection with any Financing involving an offering of securities, (v) cooperating with the Financing Sources’ requests for due diligence to the extent customary and reasonable, (vi) providing, at least five Business Days prior to the Closing Date, all documentation and other information about the Company and each of the Transferred Subsidiaries to the extent requested at least ten Business Days prior to the Closing Date, that relates to applicable “know your customer” and anti-money laundering rules and regulations including without limitation the USA PATRIOT Act, and (vii) providing customary authorization letters to the Financing Sources to the extent requested. The Parent will, upon request of the Acquiror, use its commercially reasonable best efforts to periodically update any information to be included in any Offering Document so that the Acquiror may ensure that such information, when taken as a whole, does not contain as of the time provided, giving effect to any supplements, any untrue statement of material fact or omit to state any material fact necessary in order to make the statements contained therein not materially misleading. Nothing in this Section 5.14(b) shall require such cooperation to the extent it would (A) require the Parent or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or otherwise incur any liability, in each case, to the extent the Acquiror does not have a reimbursement or indemnity obligation to the Parent or its Subsidiaries pursuant to this Section 5.14(b) (B) require the Parent or any of its Subsidiaries or their respective Representatives to (x) enter into any instrument or Contract that is effective prior to the occurrence of the Closing or that would be effective if the Closing does not occur or (y) adopt any resolution or otherwise take any corporate or similar action, (C) unreasonably interfere with the ongoing operations of the Parent or its Subsidiaries or (D) conflict with or violate laws or result in a contravention of, or that would reasonably be expected to result in a violation or breach of, or default under, any material contract to which the Parent or any of its Subsidiaries is a party. The Acquiror shall promptly, upon the written request by the Parent, (i) reimburse the Parent for all reasonable and documented out-of-pocket costs (including reasonable attorneys’ and accountants’ fees) incurred by the Parent or any of its Subsidiaries in connection with providing assistance requested by the Acquiror pursuant to this Section 5.14(b), and (ii) indemnify the Parent and its Subsidiaries for any damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with providing assistance requested by the Acquiror pursuant to this Section 5.14(b). The Parent hereby consents to the use of the logos of the Company and the Transferred Subsidiaries in connection with the Financing; provided, however, that such logos are used solely in a manner that is reasonable and customary for such purposes and that is not intended to or reasonably likely to harm or disparage the Parent or any its Affiliates or the reputation or goodwill of the Parent or any of its Affiliates or any of their respective products, services, offerings or intellectual property rights. Notwithstanding any other provision set forth herein or in any other agreement between the Parent and the Acquiror, the Parent agrees that the Acquiror may share non-public or confidential information regarding the Company and the Transferred Subsidiaries with the Financing Sources, and that the Acquiror and such Financing Sources may share such information with potential Financing Sources in connection with any marketing efforts (including any syndication) in connection with the Financing; provided, that the sharing of such information is in accordance with the Confidentiality Agreement or, prior to the receipt of such information, the recipient enters a non-disclosure agreement with the Acquiror regarding the receipt of such information on terms substantially similar to the Confidentiality Agreement or otherwise reasonably satisfactory to the Parent.
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Samples: Stock Purchase Agreement, Stock Purchase Agreement (American International Group Inc), Stock Purchase Agreement (Arch Capital Group Ltd.)
Acquiror Financing. (a) The Acquiror will use commercially reasonable best efforts to take all actions reasonably necessary, proper or advisable to obtain the Financing on the terms and conditions described in the Bridge Loan Agreement, including using commercially reasonable best efforts (i) to maintain in effect the Bridge Loan Agreement in accordance with its terms and subject to the conditions there in and enforce its rights thereunder and (ii) to satisfy (or cause its Subsidiaries to satisfy) on a timely basis (taking into account the expected timing of the Marketing Period) all conditions to obtaining the Financing that are applicable to it as set forth in the Bridge Loan Agreement. In the event that any portion of the Financing becomes unavailable on the terms and conditions set forth in the Bridge Loan Agreement, the Acquiror shall promptly notify the Parent of such unavailability and, to its knowledge, the reason therefor, and the Acquiror shall use its commercially reasonable best efforts to, prior to obtainthe Initial Closing, as promptly as practicable following the occurrence of such event, any such portion from alternative sources (“Alternative Financing”) in an amount sufficient, together with its other then available resources, to finance the Cash Consideration and to consummate the transactions contemplated hereby and on conditions to funding that are not materially less favorable, taken as a whole, to the Parent or Acquiror Financing. Acquiror shall (a) keep GE apprised of all material developments in respect of the Acquiror Financing, and (in the reasonable judgment of the Acquirorb) than the conditions to funding set forth in the Bridge Loan Agreement. The Acquiror shall deliver to the Parent true and complete promptly provide GE with copies of all agreements pursuant to which any such alternative source shall have committed to provide the Acquiror with the Alternative Financing (except for customary non-disclosure agreements and except that fee letters may be redacted in a customary manner to remove the fee amounts and other terms that could not reasonably be expected to adversely affect the conditionality, enforceability, termination or aggregate principal amount drafts of the Alternative Financing). The Acquiror shall not agree to or permit, without the Parent’s prior written consent, any amendment, supplement documents or other modification of, or any waiver of any of its rights under, or the designation of a subsidiary borrower pursuant to, the Bridge Loan Agreement if such amendment, supplement, modification, waiver or designation of borrower material correspondence with third parties (Aincluding Governmental Authorities) reduces the aggregate amount of the Financing, or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the Financing in a manner that would reasonably be expected to (I) materially delay or prevent the Closing, (II) make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur, (III) reduce the aggregate amount of the commitments available under the Bridge Loan Agreement (except pursuant to the terms thereof in connection with any equity or debt offering or asset sale; it being understood that the Acquiror shall not optionally reduce the commitments under the Bridge Loan Agreement to an amount below the amount that is required, together with cash on hand and amounts available to be drawn under the Existing Revolving Credit Agreement, to pay the Cash Consideration, consummate the transactions contemplated by this Agreement and the other Transaction Agreements and satisfy all of the obligations of the Acquiror under this Agreement), (IV) adversely impact the ability of the Acquiror to consummate the transactions contemplated by this Agreement or the likelihood of the Acquiror doing so or (V) adversely impact the ability of the Acquiror to enforce its rights against other parties to the Bridge Loan Agreement or the other definitive agreements relating to the Financing. The Acquiror shall promptly deliver to the Parent copies of any amendment, supplement or other modification of the Bridge Loan Agreement. The Acquiror shall give the Parent prompt written notice of (x) any material breach by any party to the Bridge Loan Agreement of which the Acquiror becomes aware or any termination of the Bridge Loan Agreement, or (y) any material dispute or disagreement between or among the Acquiror, on the one hand, and the Financing Sources on the other hand. If at any time for any reason the Acquiror believes in good faith that it will not be able to obtain all or any portion of the Financing contemplated by the Bridge Loan Agreement, the Acquiror shall deliver prompt written notice to the Parent. The Acquiror shall keep the Parent informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Financing and provide to the Parent copies of all related documents promptly upon the request of the Parent (which may be redacted, if applicable, in a customary manner to remove the fee amounts and other terms that could not reasonably be expected to adversely affect the conditionality, enforceability, termination or aggregate principal amount of the Financing). In no event shall the unavailability of any funds or financing (including, for the avoidance of doubt, the Financing) by or to the Acquiror excuse the Acquiror from performance of any of its obligations hereunderFinancing. Notwithstanding anything to the contrary, the obligations of the Acquiror in this Section 5.14(a) relating to the Bridge Credit Agreement (or any Alternative Financing) shall not apply from and after the date on which the Acquiror shall have generated gross proceeds from Financing other than under the Bridge Loan Agreement of at least the aggregate amount of commitments under the Bridge Loan Agreement on the date hereof.
(b) The Parent agrees to use its commercially reasonable best effortsGE shall, and shall cause its Subsidiaries and its and their respective Representatives to use their commercially reasonable best effortsto, to provide such customary cooperation as may be reasonably requested by assist Acquiror in connection with the Acquiror to assist the Acquiror in the arrangement of the Financing, including using commercially reasonable best efforts in (i) assisting with . Such assistance shall include the preparation of Offering Documents (such audited and any supplements thereto), (ii) preparing unaudited historical financial statements for the Business and furnishing such other financial information for the Business to the Acquiror and the Financing Sources as promptly as practicable all Required Information and all other available pertinent information and disclosures relating to the Company and the Transferred Subsidiaries (including UG Asia and its Subsidiaries) (including their businesses, operations, financial projections and prospects) as may be reasonably requested by the enable Acquiror to assist in preparation of the Offering Documents and any supplements thereto, including any prepare pro forma financial statements, data or other information (A) of the type in each case as would be required by under Regulation S-X (including Item 3-05 and Article 11 thereof) if the Acquiror Financing were registered under the Securities Act or Regulation S-Kas otherwise required by applicable stock exchange rules or applicable law (including, or (Bwithout limitation, the EU Prospectus Directive and Prospectus Regulation) and a reverse reconciliation of financial information for the Business to Swiss GAAP FER to enable the Acquiror to prepare pro forma financial statements (collectively, the “Business Financial Information”) and making available documents and information of the Polaris Companies and the Transferred Assets for use in offering memoranda, private placement memoranda, prospectuses and similar offering documents (such documents and information, the Company’s independent auditors to provide comfort letters (including customary “negative assurancesOther Business Information”), (iii) having appropriate members all at the expense of senior management of the Company Acquiror, and its Representatives to participate participation in a reasonable number of presentations, road showsmeetings, due diligence sessions, drafting sessionsroad shows and rating agency presentations, customary meetings and sessions requesting comfort letters of accountants and opinions of counsel, in each case as may be reasonably requested by Acquiror. GE also shall, and shall cause its Subsidiaries and its and their respective Representatives to, provide Acquiror with ratings agencies such Business Financial Information and Other Business Information as may be reasonably requested by Acquiror and shall request an accountants’ comfort letter in connection with the Financing and reasonably cooperating arrangement by Acquiror of any other financing to be consummated prior to or contemporaneously with marketing efforts the Initial Closing, any refinancing or replacement of any existing, or the arrangement of any new, facility for Indebtedness of the Polaris Companies, or the commencement of any tender offer and/or consent solicitation (subject to consummation of the transactions contemplated hereby) with respect to any outstanding notes or bonds related to the FinancingBusiness. Notwithstanding the foregoing, nothing in this Section 7.13 shall require GE or any of its Affiliates, including direct contact between such senior management and Representatives of the Company and the Transferred Acquired Subsidiaries and the Financing Sources and potential lenders and investors Transferors, to modify its business plans or otherwise alter in any material respect the Financing, (iv) engaging manner in which it conducts its business. In the Company’s independent auditors using commercially reasonable best efforts to cause such auditors to deliver comfort letters and consents event that any document prepared by Acquiror or its Representatives in connection with any Financing involving an offering such financing contains a description of securities, (v) cooperating with the Financing Sources’ requests for due diligence to the extent customary and reasonable, (vi) providing, at least five Business Days prior to the Closing Date, all documentation and other information about the Company and each of the Transferred Subsidiaries to the extent requested at least ten Business Days prior to the Closing Date, that relates to applicable “know your customer” and anti-money laundering rules and regulations including without limitation the USA PATRIOT Act, and (vii) providing customary authorization letters to the Financing Sources to the extent requested. The Parent will, upon request of the Acquiror, use its commercially reasonable best efforts to periodically update any information to be included in any Offering Document so that the Acquiror may ensure that such information, when taken as a whole, does not contain as of the time provided, giving effect to any supplements, any untrue statement of material fact or omit to state any material fact necessary in order to make the statements contained therein not materially misleading. Nothing in this Section 5.14(b) shall require such cooperation to the extent it would (A) require the Parent or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or otherwise incur any liability, in each case, to the extent the Acquiror does not have a reimbursement or indemnity obligation to the Parent GE or its Subsidiaries pursuant to business (other than the Business) or the transactions contemplated by this Section 5.14(b) (B) require the Parent or any of its Subsidiaries or their respective Representatives to (x) enter into any instrument or Contract that is effective prior to the occurrence of the Closing or that would be effective if the Closing does not occur or (y) adopt any resolution or otherwise take any corporate or similar actionAgreement, (C) unreasonably interfere with the ongoing operations of the Parent or its Subsidiaries or (D) conflict with or violate laws or result in a contravention of, or that would reasonably be expected to result in a violation or breach of, or default under, any material contract to which the Parent or any of its Subsidiaries is a party. The Acquiror shall promptly, upon the written request by the Parent, (i) give GE a reasonable opportunity to review and comment on such description and (ii) reflect in such documents all comments reasonably proposed by GE that relate to GE, the Polaris Companies or the transactions contemplated by this Agreement. Acquiror shall reimburse the Parent GE and its Subsidiaries for all their reasonable and documented out-of-pocket costs (including reasonable attorneys’ and accountants’ fees) expenses incurred by the Parent or any of its Subsidiaries in connection with providing any assistance requested with financing matters as contemplated by this Section 7.13. GE shall, and shall cause its Subsidiaries and its and their respective Representatives to, prepare the Business Financial Information and the Other Business Information in good faith and with the same degree of care that GE would use in a financing for its own account. Acquiror hereby agrees to indemnify and hold harmless GE and its Affiliates from any third party claims arising from any misstatement or omission or alleged misstatement or omission in any offering document in respect of any of such financing; provided that GE hereby agrees to indemnify and hold harmless Acquiror and its affiliates from any third party claims arising from any misstatement or omission or alleged misstatement or omission made in reliance upon and in conformity with written information furnished to Acquiror by GE expressly for use in any offering document in respect of the Acquiror pursuant to this Section 5.14(b), and (ii) indemnify the Parent and its Subsidiaries for any damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with providing assistance requested by the Acquiror pursuant to this Section 5.14(b). The Parent hereby consents to the use of the logos of the Company and the Transferred Subsidiaries in connection with the Financing; provided, however, that such logos are used solely in a manner that is reasonable and customary for such purposes and that is not intended to or reasonably likely to harm or disparage the Parent or any its Affiliates or the reputation or goodwill of the Parent or any of its Affiliates or any of their respective products, services, offerings or intellectual property rights. Notwithstanding any other provision set forth herein or in any other agreement between the Parent and the Acquiror, the Parent agrees that the Acquiror may share non-public or confidential information regarding the Company and the Transferred Subsidiaries with the Financing Sources, and that the Acquiror and such Financing Sources may share such information with potential Financing Sources in connection with any marketing efforts (including any syndication) in connection with the Financing; provided, that the sharing of such information is in accordance with the Confidentiality Agreement or, prior to the receipt of such information, the recipient enters a non-disclosure agreement with the Acquiror regarding the receipt of such information on terms substantially similar to the Confidentiality Agreement or otherwise reasonably satisfactory to the Parent.
Appears in 1 contract
Acquiror Financing. (a) The Acquiror will shall, between the date hereof and the Closing, use commercially reasonable best efforts its Best Efforts to take take, or cause to be taken, all actions reasonably and use its Best Efforts to do, or cause to be done, all things necessary, proper or advisable to obtain (i) maintain in effect the Debt Commitment Letter, and to satisfy the conditions to obtaining the Debt Financing set forth therein that are within Acquiror’s control, (ii) enter into a definitive agreement with respect to the Debt Financing so that such agreement is in effect as promptly as practicable on the terms and conditions contained in the Debt Commitment Letter (including any “market flex” provisions related thereto) or on other terms acceptable to Acquiror and its lenders, (iii) satisfy on a timely basis all conditions applicable to Acquiror or Merger Sub in such definitive agreements that are within their control, (iv) consummate the Debt Financing on the terms and conditions described in the Bridge Loan Agreement, including using commercially reasonable best efforts (i) Debt Commitment Letter or on other terms acceptable to maintain in effect the Bridge Loan Agreement in accordance with Acquiror and its terms and subject to the conditions there in and enforce its rights thereunder lenders and (iiv) to satisfy (or cause its Subsidiaries to satisfy) on draw a timely basis (taking into account the expected timing sufficient amount of the Marketing Period) all conditions to obtaining the Debt Financing that are applicable to it as set forth in the Bridge Loan Agreement. In the event that any portion of the Financing becomes unavailable on the terms and conditions set forth in the Bridge Loan Agreement, the Acquiror shall promptly notify the Parent of such unavailability and, to its knowledge, the reason therefor, and the Acquiror shall use its commercially reasonable best efforts to obtain, as promptly as practicable following the occurrence of such event, any such portion from alternative sources (“Alternative Financing”) in an amount sufficient, together with its other then available resources, to finance the Cash Consideration and to consummate the transactions contemplated hereby and on conditions to funding that are not materially less favorableas soon as it is available. If, taken as a wholenotwithstanding the use of Best Efforts by Acquiror, any portion of the Debt Financing expires, is terminated or otherwise becomes unavailable prior to the Parent Closing, in whole or the Acquiror (in the reasonable judgment of the Acquiror) than the conditions to funding set forth in the Bridge Loan Agreement. The part, for any reason, Acquiror shall deliver to (x) promptly notify the Parent true and complete copies Company of all agreements pursuant to which any such alternative source shall have committed to provide the Acquiror with the Alternative Financing (except for customary non-disclosure agreements and except that fee letters may be redacted in a customary manner to remove the fee amounts and other terms that could not reasonably be expected to adversely affect the conditionality, enforceabilityexpiration, termination or aggregate principal amount of other unavailability and the Alternative Financing). The Acquiror shall not agree reasons therefor and (y) use its Best Efforts to or permitarrange for alternative financing to replace the Debt Financing contemplated by such expired, without the Parent’s prior written consent, any amendment, supplement or other modification of, or any waiver of any of its rights under, or the designation of a subsidiary borrower pursuant to, the Bridge Loan Agreement if such amendment, supplement, modification, waiver or designation of borrower (A) reduces the aggregate amount of the Financing, or (B) imposes new or additional conditions terminated or otherwise expands, amends unavailable commitments or modifies any of the conditions to the receipt of the Financing agreements in a manner that would reasonably be expected to (I) materially delay or prevent the Closing, (II) make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur, (III) reduce the aggregate amount of the commitments available under the Bridge Loan Agreement (except pursuant to the terms thereof in connection with any equity or debt offering or asset sale; it being understood that the Acquiror shall not optionally reduce the commitments under the Bridge Loan Agreement to an amount below the amount that is requiredamount, together with cash on hand and amounts available to be drawn under the Existing Revolving Credit Agreementother funding sources, to pay the Cash Consideration, consummate the transactions contemplated by this Agreement and the other Transaction Agreements and satisfy all of the obligations of the Acquiror under this Agreement), (IV) adversely impact the ability of the Acquiror that is required to consummate the transactions contemplated by this Agreement or the likelihood of the Acquiror doing so or (V) adversely impact the ability of the Acquiror hereby, including using Best Efforts to enforce its rights against other parties to the Bridge Loan Agreement or the other enter into definitive agreements relating to the Financing. The with respect thereto; provided, that Acquiror and Merger Sub shall promptly deliver to the Parent copies of any amendment, supplement or other modification of the Bridge Loan Agreement. The Acquiror shall give the Parent prompt written notice of (x) any material breach by any party to the Bridge Loan Agreement of which the Acquiror becomes aware or any termination of the Bridge Loan Agreement, or (y) any material dispute or disagreement between or among the Acquiror, on the one hand, and the Financing Sources on the other hand. If at any time for any reason the Acquiror believes in good faith that it will not be able required to obtain all arrange or agree to any portion of such alternative financing on terms which are materially less favorable to those set forth in the Financing contemplated Debt Commitment Letter (as reasonably determined by the Bridge Loan Agreement, the Acquiror shall deliver prompt written notice to the ParentAcquiror). The Acquiror shall keep the Parent Company reasonably informed on a reasonably current basis in reasonable detail of the status of its of, and any material developments relating to, Acquiror’s efforts to arrange the Debt Financing and provide to the Parent copies of all related documents promptly upon the request of the Parent (which may be redacted, if applicable, in a customary manner to remove the fee amounts and other terms that could not reasonably be expected to adversely affect the conditionality, enforceability, termination or aggregate principal amount of the Financing). In no event shall the unavailability of any funds or financing (including, for the avoidance of doubt, the Financing) by or to the Acquiror excuse the Acquiror from performance of any of its obligations hereunder. Notwithstanding anything to the contrary, the obligations of the Acquiror in this Section 5.14(a) relating to the Bridge Credit Agreement (or any Alternative Financing) shall not apply from and after the date on which the Acquiror shall have generated gross proceeds from Financing other than under the Bridge Loan Agreement of at least the aggregate amount of commitments under the Bridge Loan Agreement on the date hereofreplacement thereof).
(b) The Parent agrees to Company shall use its commercially reasonable best efforts, and shall efforts to cause its Subsidiaries directors, officers, employees, investment bankers, financial advisors, attorneys, advisors, accountants, consultants, agents, Affiliates and their respective Representatives other representatives (collectively, “Representatives”) to use their commercially reasonable best effortsprovide, to provide such all necessary or customary cooperation as may be (including prompt and timely responses) reasonably requested by Acquiror or Merger Sub in connection with the Acquiror to assist Debt Financing (or any amendments, modifications or replacement thereof) and the Acquiror in the arrangement of the Financingother transactions contemplated by this Agreement, including using commercially reasonable best efforts in (i) assisting with the preparation of offering and syndication documents and materials, including prospectuses, private placement memoranda, confidential information memoranda and packages, lender and investor presentations, rating agency presentations, and similar documents and materials, in connection with the Debt Financing (all such documents and materials, collectively, the “Offering Documents (and any supplements theretoDocuments”), (ii) preparing and furnishing to the Acquiror and the Financing Sources Merger Sub and their financing sources as promptly as practicable with all Required Information and all other available pertinent information and disclosures relating to the Company and the Transferred its Subsidiaries (including UG Asia and its Subsidiaries) (including their businesses, operations, financial projections and prospects) as may be reasonably requested by the Acquiror to assist or Merger Sub (including execution of customary authorization and management representation letters and certificates in preparation of connection with the Offering Documents and any supplements thereto, including any financial statements, data or other information (A) of the type required by Regulation S-X or Regulation S-K, or (B) for the Acquiror to prepare pro forma financial information and for the Company’s independent auditors to provide comfort letters (including customary “negative assurances”Required Information), (iii) having appropriate members of senior management of assisting in the Company preparation for and its Representatives to participate participating in a reasonable number of meetings, presentations, road showsshows and other marketing presentations, due diligence sessions (including accounting due diligence sessions), drafting sessions, customary meetings sessions and sessions with ratings rating agencies in connection with the Financing and reasonably cooperating with marketing efforts related to the Debt Financing, including direct contact between such senior management and Representatives of the Company and the Transferred its Subsidiaries and the Financing Sources Acquiror’s and Merger Sub’s financing sources and potential lenders and investors in the Debt Financing, and obtaining any corporate and credit ratings from rating agencies contemplated by the Debt Commitment Letter, (iv) engaging obtaining accountant’s comfort letters and consents from the Company’s independent auditors using commercially reasonable best efforts to cause such auditors to deliver comfort letters and consents in connection with any Financing involving an offering of securitiesauditors, (v) cooperating with assisting in the Financing Sources’ requests for due diligence to the extent customary preparation of, and reasonableexecuting and delivering, definitive financing documents, including guarantee and collateral documents, hedging agreements and other certificates and documents as may be requested by Acquiror or Merger Sub, (vi) providingfacilitating the pledging of collateral for the Debt Financing, at least five Business Days prior including taking commercially reasonable actions necessary to permit the Closing Datefinancing sources of the Debt Financing to evaluate the Company’s and its Subsidiaries’ real property and current assets, all documentation cash management and accounting systems, policies and procedures for the purpose of establishing collateral arrangements and establishing, as of the Effective Time, bank and other information about accounts and blocked account agreements and lockbox arrangements in connection with the Debt Financing, (vii) using commercially reasonable efforts to ensure that the financing sources benefit from the existing lending relationships of the Company and each its Subsidiaries, (viii) using commercially reasonable efforts to obtain such consents, approvals, authorizations and instruments which may be reasonably requested by Acquiror or Merger Sub in connection with the Debt Financing and collateral arrangements, including customary payoff letters, lien releases, instruments of termination or discharge, legal opinions, surveys, title insurance and landlord consents, waivers and access agreements and (ix) facilitating the consummation of the Transferred Subsidiaries Debt Financing, including cooperating with Acquiror and Merger Sub to satisfy the conditions precedent to the Debt Financing to the extent requested at least ten Business Days prior to within the Closing Date, that relates to applicable “know your customer” control of the Company and anti-money laundering rules and regulations including without limitation the USA PATRIOT Actits Subsidiaries, and (vii) providing customary authorization letters to the Financing Sources to the extent requested. The Parent willtaking all corporate actions, upon request of the Acquiror, use its commercially reasonable best efforts to periodically update any information to be included in any Offering Document so that the Acquiror may ensure that such information, when taken as a whole, does not contain as of the time provided, giving effect to any supplements, any untrue statement of material fact or omit to state any material fact necessary in order to make the statements contained therein not materially misleading. Nothing in this Section 5.14(b) shall require such cooperation to the extent it would (A) require the Parent or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or otherwise incur any liability, in each case, to the extent the Acquiror does not have a reimbursement or indemnity obligation to the Parent or its Subsidiaries pursuant to this Section 5.14(b) (B) require the Parent or any of its Subsidiaries or their respective Representatives to (x) enter into any instrument or Contract that is effective prior subject to the occurrence of the Closing Effective Time, reasonably requested by Acquiror or that would be effective if Merger Sub to permit the Closing does not occur or (y) adopt any resolution or otherwise take any corporate or similar action, (C) unreasonably interfere with the ongoing operations consummation of the Parent or its Subsidiaries or (D) conflict with or violate laws or result in a contravention of, or that would reasonably Debt Financing and to permit the proceeds thereof to be expected made available to result in a violation or breach of, or default under, any material contract to which the Parent or any of its Subsidiaries is a partySurviving Corporation immediately upon the Effective Time. The Acquiror shall promptly, upon the written request by the Parent, (i) reimburse the Parent for all reasonable and documented out-of-pocket costs (including reasonable attorneys’ and accountants’ fees) incurred by the Parent or any of its Subsidiaries in connection with providing assistance requested by the Acquiror pursuant to this Section 5.14(b), and (ii) indemnify the Parent and its Subsidiaries for any damages, losses, costs, liabilities or expenses suffered or incurred by any of them in connection with providing assistance requested by the Acquiror pursuant to this Section 5.14(b). The Parent Company hereby consents to the use of the its and its Subsidiaries’ logos of the Company and the Transferred Subsidiaries in connection with the Debt Financing; provided, however, that such logos are used solely in a manner that is reasonable and customary for such purposes and that is not intended to or reasonably likely to harm or disparage the Parent Company or any of its Affiliates Subsidiaries or the reputation or goodwill of the Parent Company or any of its Affiliates Subsidiaries. The Company’s obligations set forth in this Section 6.06(b) shall also include commercially reasonable efforts to obtain (and assist in obtaining) in a timely manner appraisals, surveys, engineering reports, environmental and other inspections, title insurance and other documentation and items relating to the Debt Financing as reasonably requested by Acquiror; provided, that such requested cooperation shall not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries. Acquiror shall promptly, upon written request by the Shareholders’ Representative, reimburse the Shareholders’ Representative for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees of counsel for the Company and its Subsidiaries) incurred by the Company or any of its Subsidiaries in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 6.06(b).
(c) The Company agrees that it shall inform Acquiror if, to the Knowledge of the Company, any information regarding the Company in the Offering Documents would cause the Offering Documents to be materially misleading; provided, however, that the Company shall have no affirmative obligation to review the Offering Documents for such information.
(d) Notwithstanding anything to the contrary in this Agreement, the obligations of the Company under Section 6.06(b) shall be deemed satisfied unless the Debt Financing has not been obtained as a direct result of the Company’s material breach of such obligations. None of the Pre-Closing Shareholders or any of their respective products, services, offerings or intellectual property rightsRepresentatives shall have any obligations under Section 6.06(b) following the Closing. Notwithstanding any other provision set forth herein or in any other agreement between the Parent and the Acquiror, the Parent agrees that the Acquiror may share All non-public or confidential information regarding the Company provided to prospective lenders and the Transferred Subsidiaries with the Financing Sources, and that the Acquiror and such Financing Sources may share such information with potential Financing Sources in connection with any marketing efforts (including any syndication) in connection with the Financing; provided, that the sharing of such information is in accordance with the Confidentiality Agreement or, prior to the receipt of such information, the recipient enters a non-disclosure agreement with the Acquiror regarding the receipt of such information on terms substantially similar investors shall remain subject to the Confidentiality Agreement or otherwise reasonably satisfactory except to the Parentextent (i) disclosure is necessary and customary in connection with obtaining the Debt Financing or (ii) any such lender or investor has entered into a confidentiality agreement with the Company, in which case the terms and conditions of such confidentiality agreement shall govern in respect of such lender or investor.
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