Financing Facility. (a) Subject to Section 5.14(c) and Section 5.14(d), upon the request of Alpha, Foundation will use its commercially reasonable efforts (which shall not include efforts regarding any offering of securities) to cooperate with Alpha to (i) arrange and obtain a new revolving credit facility for the Surviving Corporation (the "Financing Facility") on terms and conditions reasonably satisfactory to Alpha; (ii) enter into and to cause each of the Subsidiaries of Foundation to enter into definitive agreements with respect to the Financing Facility on terms and conditions reasonably satisfactory to Alpha (provided that the effectiveness of such definitive agreements be conditioned on the closing of the Financing Facility); (iii) satisfy as promptly as reasonably practicable all conditions applicable to it in such definitive agreements as of the Effective Time; and (iv) obtain a disbursement under the Financing Facility of an amount reasonably determined by Alpha (which disbursement shall not be made prior to the Effective Time). If either party to this Agreement becomes aware that the Financing Facility will not be available at or prior to the Effective Time, then such party shall promptly notify the other party to this Agreement. The closing of the Financing Facility shall be expressly conditioned on the completion of the Merger. (b) Subject to Section 5.14(c) and Section 5.14(d), upon the request of Alpha, Foundation shall use its commercially reasonable efforts (which shall not include efforts regarding any offering of securities) to provide, and to cause its Subsidiaries and the directors, officers, employees, consultants, advisors, legal counsel, accountants and other agents of Foundation and each of its Subsidiaries to provide, all cooperation reasonably necessary to obtain the Financing Facility as may reasonably be requested by Alpha, including, without limitation, (i) making its personnel reasonably available to participate in meetings, drafting sessions, due diligence sessions and other presentations, including presentations with prospective lenders and with rating agencies; (ii) furnishing to prospective lenders and their representatives and Alpha as promptly as reasonably practicable all historical, projected and pro forma financial statements and other historical, projected and pro forma financial information, business plans, budgets and other reasonably pertinent data and information that is in Foundation's possession (or obtainable without unreasonable expense) and reasonably requested by Alpha; (iii) making its personnel reasonably available to participate in the marketing presentations and other marketing efforts for any portion of the Financing Facility and assisting in the timely preparation of bank information memoranda, presentations and similar documents and of material for rating agency presentations; (iv) using commercially reasonable efforts to satisfy the conditions set forth in the definitive agreements with respect to the Financing Facility, including to obtain and provide opinions of counsel, corporate approvals of the transactions contemplated by the Financing Facility and certifications with respect to such approvals as may reasonably be required by the prospective lenders and their representatives, in form and substance reasonably satisfactory to the prospective lenders and their representatives; and (v) taking such commercially reasonable actions and providing such information and assistance as may be reasonably requested in connection with creating Liens upon or pledging collateral to secure the Financing Facility. (c) Alpha hereby agrees and acknowledges that its obligation to effect the Merger on the Closing Date in accordance with Section 1.2 is not contingent or conditioned on obtaining or closing upon the Financing Facility or receiving any disbursement thereunder and that no breach, other than a willful and material breach, by Foundation of, or other failure, other than a willful and material failure, of Foundation to comply with, any provision of this Section 5.14 shall constitute a breach or non-performance of a representation, warranty, obligation, covenant or agreement of Foundation for purposes of Section 6.2(a), Section 6.2(b), Section 7.1(f) or Section 7.1(g). (d) Alpha hereby agrees and acknowledges that Foundation and its Affiliates and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing Facility, and that Alpha shall indemnify and hold harmless Foundation, its Affiliates and its Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the Financing Facility and any information utilized in connection therewith, except for losses arising out of, or as a result of, information provided by Foundation, its Affiliates or its Representatives specifically for use in connection with the Financing Facility or Foundation's, its Affiliates' or its Representatives' gross negligence or willful misconduct. Alpha shall promptly, upon request by Foundation, reimburse Foundation for all reasonable out-of-pocket third party costs incurred by Foundation or any of its Subsidiaries in connection with this Section 5.14.
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Financing Facility. (a) Subject to Section 5.14(c) and Section 5.14(d), upon the request of Alpha, Foundation will use its commercially reasonable efforts (which shall not include efforts regarding any offering of securities) to cooperate with Alpha to (i) arrange and obtain a new revolving credit facility for the Surviving Corporation (the "“Financing Facility"”) on terms and conditions reasonably satisfactory to Alpha; (ii) enter into and to cause each of the Subsidiaries of Foundation to enter into definitive agreements with respect to the Financing Facility on terms and conditions reasonably satisfactory to Alpha (provided that the effectiveness of such definitive agreements be conditioned on the closing of the Financing Facility); (iii) satisfy as promptly as reasonably practicable all conditions applicable to it in such definitive agreements as of the Effective Time; and (iv) obtain a disbursement under the Financing Facility of an amount reasonably determined by Alpha (which disbursement shall not be made prior to the Effective Time). If either party to this Agreement becomes aware that the Financing Facility will not be available at or prior to the Effective Time, then such party shall promptly notify the other party to this Agreement. The closing of the Financing Facility shall be expressly conditioned on the completion of the Merger.
(b) Subject to Section 5.14(c) and Section 5.14(d), upon the request of Alpha, Foundation shall use its commercially reasonable efforts (which shall not include efforts regarding any offering of securities) to provide, and to cause its Subsidiaries and the directors, officers, employees, consultants, advisors, legal counsel, accountants and other agents of Foundation and each of its Subsidiaries to provide, all cooperation reasonably necessary to obtain the Financing Facility as may reasonably be requested by Alpha, including, without limitation, (i) making its personnel reasonably available to participate in meetings, drafting sessions, due diligence sessions and other presentations, including presentations with prospective lenders and with rating agencies; (ii) furnishing to prospective lenders and their representatives and Alpha as promptly as reasonably practicable all historical, projected and pro forma financial statements and other historical, projected and pro forma financial information, business plans, budgets and other reasonably pertinent data and information that is in Foundation's ’s possession (or obtainable without unreasonable expense) and reasonably requested by Alpha; (iii) making its personnel reasonably available to participate in the marketing presentations and other marketing efforts for any portion of the Financing Facility and assisting in the timely preparation of bank information memoranda, presentations and similar documents and of material for rating agency presentations; (iv) using commercially reasonable efforts to satisfy the conditions set forth in the definitive agreements with respect to the Financing Facility, including to obtain and provide opinions of counsel, corporate approvals of the transactions contemplated by the Financing Facility and certifications with respect to such approvals as may reasonably be required by the prospective lenders and their representatives, in form and substance reasonably satisfactory to the prospective lenders and their representatives; and (v) taking such commercially reasonable actions and providing such information and assistance as may be reasonably requested in connection with creating Liens upon or pledging collateral to secure the Financing Facility.
(c) Alpha hereby agrees and acknowledges that its obligation to effect the Merger on the Closing Date in accordance with Section 1.2 is not contingent or conditioned on obtaining or closing upon the Financing Facility or receiving any disbursement thereunder and that no breach, other than a willful and material breach, by Foundation of, or other failure, other than a willful and material failure, of Foundation to comply with, any provision of this Section 5.14 shall constitute a breach or non-performance of a representation, warranty, obligation, covenant or agreement of Foundation for purposes of Section 6.2(a), Section 6.2(b), Section 7.1(f) or Section 7.1(g).
(d) Alpha hereby agrees and acknowledges that Foundation and its Affiliates and their respective Representatives shall not have any responsibility for, or incur any liability to any Person under, the Financing Facility, and that Alpha shall indemnify and hold harmless Foundation, its Affiliates and its Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the Financing Facility and any information utilized in connection therewith, except for losses arising out of, or as a result of, information provided by Foundation, its Affiliates or its Representatives specifically for use in connection with the Financing Facility or Foundation's’s, its Affiliates' ’ or its Representatives' ’ gross negligence or willful misconduct. Alpha shall promptly, upon request by Foundation, reimburse Foundation for all reasonable out-of-pocket third party costs incurred by Foundation or any of its Subsidiaries in connection with this Section 5.14.
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