xr Trans-Lex.org Law Research Trans-Lex.org Law Research - Docid: 932000 -
Principle

No. IV.6.5 - Best efforts undertakings

If a party promises its "best efforts" in the performance of its contractual duties, that party owes to the promisee all efforts which can be expected from a reasonable party of the same kind in the same circumstances, taking into account the particular nature of the contract and the interests of the parties.

Commentary
1 Best endeavours or best efforts clauses are frequently used in international contracts either to determine the degree of performance owed by one side for the fulfillment of an ancillary duty such as the procurement of a clearance from antitrust or other official authorities or even to weaken the standard of duty for the debtor’s main obligation due to the uncertainties existing at the moment of contract conclusion with respect to the success or performance owed by that party. The best efforts principle is a borderline case which one may be tempted to categorize as a legal rule rather than as a general principle of law. However, like the principle of good faith and fair dealing, the best efforts principle comes close to a behavioural standard for the performance of any contract, provided that parties have included a best efforts clause into their contract.

2 Due to its generic nature, the principle of best efforts reflects the fact that general principles of law constitute ‘rules of optimal application’ which means that they may be complied with in varying degrees, depending on the circumstances of the individual case. “Best efforts” or “best endeavours” clauses have their origin in English and US common law. English courts have made it very clear that a debtor under a best efforts or best endeavours clause does not owe a low but a reasonable standard of care and diligence in the performance of his duties. Thus, an English court has held that a best endeavours undertaking in a contract does “not mean that the limits of reason must be overstepped…” but that the words mean that [the debtor] must, “broadly speaking, leave no stone unturned” (Sheffield District Railway Company v. Great Central Railway Company, [1911] 27 T.L.R. 451, 452). In Midland Land Reclamation Limited and Leicestershire County Council v. Warren Energy Limited of 1997, the court held that the debtor’s obligation under such a clause is “to do what can reasonably be done in the circumstances”.

3 It follows from these considerations of the English courts that if a party promises its “best efforts” or "best endeadvours" in the performance of its contractual duties, that party owes to the promissee all efforts which can be expected from a reasonable party of the same kind in the same circumstances, taking into account the particular nature of the contract and the intentions and interests of the parties. If the party is a professional, he or she will have to live up to the standards of his or her profession or trade.

 


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References
Arbitral Awards
Government of the USA v. Government of the UK and Northern Ireland, Ad Hoc Award of 30 November 1992, YCA XIX (1994), at 33 et seq.
ICC Award No. 7639, YCA 1998, at 66 et seq.
ICC Award No. 8331, 10 ICC Bull. No. 2, 1999, at 65 et seq. (also published in: Clunet 1998, 1041)
Joseph Charles Lemire vs. Ukraine, ICSID Case No. ARB/06/18
Court Decisions
Bloor v Falstaff Brewing Corporation, 454 F.Supp. 258
Kraftco Corporation v. Kolbus, 274 N.E.2d 153
Little v Courage Ltd (1995) 70 P. & C.R. 469
Malik Co v Central European Trading Agency [1974] 2 Lloyd's Rep. 279
Morris Homes (West Midlands) Ltd v Keay & Anor, [2013] EWHC 932 (TCC) (18 April 2013)
Northern Counties Securities, Ltd v Jackson & Steeple, Ltd [1974] 2 All ER 625 = [1974] 1 W.L.R. 1133
Otis F. Wood v Lucy, Lady Duff-Gordon, 222 N.Y. 88
Perma Research & Development Company v. Singer Company, 402 F.Supp. 881.
Petroleum Marketing Corporation v Metropolitan Petroleum Corporation, 151 A.2d 616
Pinnacle Books, Inc. v. Harlequin Enterprises Ltd., 519 F.Supp. 118.
Pips (Leisure Productions) Ltd. v Walton, (1982) 43 P. & C.R. 415
Prentice-Hall, Inc. v E.I. DuPont de Nemours & Co., Inc 717 F.2d 671
Van Valkenburgh, Nooger & Neville, Inc. v. Hayden Publishing Company, 281 N.E.2d 142
Doctrine
Derains, Yves, note to ICC Award No. 8331, Clunet 1998, at 1044 et seq.
Domingo, Ortega, Rodriguez-Antolin, Zambrana, Principios de Derecho Global, Navarra, 2006
Fontaine, Marcel, Best Efforts, Reasonable Care, Due Diligence et règles de l‘art dans les contrats internationaux, RDAI 1998, at 983 et seq.
Fontaine, Marcel, Content and Performance, 40 Am.J.Comp.L. 1992, at 645 et seq.
Lando, Non-Performance (Breach) of Contracts, in: Hartkamp et. al., Towards a European Civil Code, 2004, Nijmegen
Lehmann, Sascha, Best efforts- und Best endeavours-Verpflichtungen im US-amerikanischen und englischen Wirtschaftsvertragsrecht, Heidelberg 2004
Lowcay, Quentin, "Best Endeavours" and "Reasonable Endeavours", NZLJ, June 1999, at 211 et seq.
Wied, Daniel, „Best efforts“-Klauseln im deutschen Recht – Auslegung und Rechtsfolgen, RIW 2013 at Page 768 et seq.
Principles / Restatements
UNIDROIT Principles of International Commercial Contracts
Contract Clauses
1. Best Efforts Undertakings Clauses
Employment Contract
Fiduciaries
Each Fiduciary (...) shall discharge his duties solely in the interest of the Participants and Beneficiaries (...) in carrying out such duties and responsibilities shall act with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in exercising such authority or duties.
1996
Fiduciary Standards
Each fiduciary shall (...) use that degree of care, skill, prudence and diligence that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims (...) act with the exclusive purpose of providing benefits to Participants (...) defraying reasonable expenses of administering the Plan (...) diversify Plan investments (...) so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so (...)
2000
Sales & Purchase Contract
Conditions, Closing
Also before fulfilment of the conditions pursuant to Clause X and in the time until the closing date: the parties shall make all reasonable preparations in order to expedite the consummation of this Agreement as soon as possible after fulfilment of the conditions (...)
Continuing Obligations
The Parties undertake upon the request of any party to this Agreement at any time after today and without further compensation, to execute all documents in proper form and to take all measures which may still be necessary in order to consummate, and to comply fully with the purpose of, this Agreement.
Best Efforts
Distributor shall use its best efforts to promote the sale of Licensed Products to Persons in the Territory, including but not limited to maintaining suitable office facilities, warehouse facilities and sales staff to enable it to provide full and effective distribution of Licensed Products (...)
Affirmative Covenants of the Seller
Seller shall, at Buyer's request, take all action necessary to ensure that Buyer will have a first or second priority security interest, as applicable, in the Collateral, including, among other things, filing such Uniform Commercial Code financing statements as Buyer may reasonably request.
1998
Remedies
(...) However, in recognition of the parties' agreement that the Transactions hereunder have been entered into in consideration of and in reliance upon the fact that all Transactions hereunder constitute a single business and contractual relationship and that each Transaction has been entered into in consideration of the other Transactions, the parties further agree that Buyer shall use its best efforts to liquidate all Transactions hereunder upon the occurrence of an Event of Default as quickly as is prudently possible in the reasonable judgment of Buyer.
1998
Confidentiality
If either party is required by law or governmental or judicial order or receives legal process or court or agency directive requesting or requiring disclosure of any of the Confidential Information contained in this Agreement, such party will promptly notify the other party prior to disclosure to permit such party to seek a protective order or take other appropriate action to preserve the confidentiality of such Confidential Information. If either party determines to file this Agreement with the Securities and Exchange Commission ("Commission") or any other federal, state or local governmental or regulatory authority, or with any stock exchange or similar body, such determining party will use its best efforts to obtain confidential treatment of such Confidential Information pursuant to any applicable rule, regulation or procedure of the Commission and any applicable rule, regulation or procedure relating to confidential filings made with any such other authority or exchange.
2002
Conduct of Business prior to Closing
The Sellers covenant that they will use reasonable efforts, subject to being entitled thereto under applicable law, to cause the Companies of the Group to conduct their business operations in all material respects in the ordinary course of business and consistent with past practices in the period between the signing of this Agreement and the Closing Date (...) the Sellers shall use reasonable efforts to take all action, and to do all things necessary under applicable law, to consummate and make effective the transactions contemplated by this Agreement (...)
2004
Best efforts
The Purchaser shall use its best efforts to cause all necessary actions to be taken in order to have the Condition Precedent (...) to be fulfilled as promptly as possible. Each Party shall execute such documents and take such further actions as may be reasonably required or desirable to carry out the provisions of this Agreement and the transactions contemplated herein, and to obtain in a timely mannner all necessary waivers, consents and approvals and to effect all necessary registrations and filings.
2004
Promotion
The Parties recognize that it is in each Party’s best interest to prominently market and promote the {Y} Products (...) to the public. During the Term, in addition to each Party’s express obligations under this Agreement, the Parties will use commercially reasonable efforts to create promotional programs designed to market and promote the {Y} Products (...) to the public. The Parties shall undertake the activities provided for in Schedule X.
2006
Access to Information
(...) each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and of their Subsidiaries (...)
2009
Conduct of Business
(...) Sellers shall and shall cause each Purchased Subsidiary to (...) use reasonable test efforts to preserve in the Ordinary Course of Business and in all material respects the present relationships of Sellers and each of their Subsidiaries with their respective customers, supplies and others having significant business dealings with them (...)
2009
Notices and Consents
Sellers shall and shall cause each of their Subsidiaries to, and Purchaser shall use reasonable best efforts to, promptly give all notice to, obtain all material consents, approvals or authorizations from, and file all notifications and related materials with, any third parties (...) that may be or become necessary to be given or obtained by Sellers or their Affiliates, or Purchaser, respectively, in connection with the transactions contemplated by this Agreement.
2009
Efforts
Each Party shall (i) make, as promptly as practicable following the execution of this Agreement, all necessary filings and notifications and other submissions (if any) with respect to the Initial Repurchase under Antitrust Laws and PRC National Security Review Rules, (ii) use its reasonable best efforts to supply as promptly as practicable any additional information and documentary material that may be requested by any Governmental Authority pursuant to Antitrust Laws and PRC National Security Review Rules and (iii) use its reasonable best efforts to obtain any necessary or appropriate Consent from any Governmental Authority and such other approvals, consents and clearances as may be necessary, proper or advisable to effectuate the Transactions under Antitrust Laws and PRC National Security Review Rules, and the removal of any Order under Antitrust Laws and PRC National Security Review Rules impeding the consummation of the Initial Repurchase.
2009
Efforts
Except with respect to those matters as to which a different efforts standard is explicitly stated, each Party shall use its reasonable best efforts to take, or cause to be taken, all appropriate action (and to do, or shall cause to be done, all things necessary, proper or advisable under Law) to consummate the Transactions as promptly as practicable and to make or obtain all Consents required in connection therewith (...)
2009
Non-Assignability
(...) Subject to Section X, Sellers shall use reasonable best efforts, and Purchaser shall use reasonable best efforts to cooperate with Sellers, to obtain the consents necessary to assign to Purchaser the Non-Assignable Assets before, at or after the Closing; provided, however, that neither Sellers nor Purchaser shall be required to make any expenditure, incur any Liability, agree to any modification to any Contract or forego or alter any rights in connection with such efforts (...)
2009
Contractually Restricted Content
For any content that X is contractually unable to make available to Y pursuant to Section X pursuant to an agreement with a third party that is entered into prior to the Commencement Date (e.g., [*]), X will use commercially reasonable best efforts to obtain the right to make such content available to Y and its Syndication Partners under Section X, as applicable, as soon as possible following the Commencement Date. If X is unable to obtain such rights after using commercially reasonable best efforts, then Y may seek to obtain such rights directly from such third party. In connection with any agreement with a third party entered into after the Commencement Date for content to be used by X in connection with its {*} Search Services, X will use commercially reasonable best efforts to obtain the rights to make such content available to Y and its Syndication Partners under Section X, as applicable. After X realizes that it may be unable to obtain such rights for Y or its Syndication Partners, then to the extent X is contractually able to do so (and X will use commercially reasonable best efforts to be able to do so) X will notify Y of such negotiations (or if X is unable to notify Y of such negotiations, then X will notify Y as soon as it is able) in reasonably sufficient time to enable Y to negotiate directly with such content (...)
2009
Contractually Restricted Content
For any content that X is contractually unable to make available to Y pursuant to Section X pursuant to an agreement with a third party that is entered into prior to the Commencement Date (e.g., [*]), X will use commercially reasonable best efforts to obtain the right to make such content available to Y and its Syndication Partners under Section X, as applicable, as soon as possible following the Commencement Date. If X is unable to obtain such rights after using commercially reasonable best efforts, then Y may seek to obtain such rights directly from such third party. In connection with any agreement with a third party entered into after the Commencement Date for content to be used by X in connection with its {*} Search Services, X will use commercially reasonable best efforts to obtain the rights to make such content available to Y and its Syndication Partners under Section X, as applicable. After X realizes that it may be unable to obtain such rights for Y or its Syndication Partners, then to the extent X is contractually able to do so (and X will use commercially reasonable best efforts to be able to do so) X will notify Y of such negotiations (or if X is unable to notify Y of such negotiations, then X will notify Y as soon as it is able) in reasonably sufficient time to enable Y to negotiate directly with such content (...)
2009
Duties of Servicer
The Servicer will take or cause to be taken all such actions as may be necessary or advisable to collect each Receivable from time to time, all in accordance with applicable laws, rules and regulations, with reasonable care and diligence, and in accordance with the applicable Credit and Collection Policy.
2009
Regulation
The Company shall use its reasonable best efforts to take all actions necessary or appropriate to obtain any regulatory approvals, notices, waivers or consents related to the issuance and acquisition of the Series C Preferred Stock or the conversion thereof into the Underlying Shares that are reasonably determined by the Company to be material and that have not been obtained on or prior to the Closing Date and shall assist the Trust in such matters.
2009
Additional Data Requirements
X will use commercially reasonable efforts to obtain and retain the necessary approvals from its vendors and licensors to permit Y to license to (...)
2010
Further Limitations on Disposition
(...) Upon the written request of Seller given within X days after receipt of any such notice, X will use its best efforts to cause the Shares to be registered under the Act (with the securities which X at the time proposes to register) (...)
2011
Confidentiality
(...) Without limiting the generality of the foregoing, each of the Buyer and the Seller will use its commercially reasonable efforts to limit the disclosure of the contents of this Agreement to the extent legally permissible in (i) any filing required to be made with any governmental agency and will make such applications as will be necessary to implement the foregoing, and (ii) any press release concerning the whole or any part of the contents and/or subject matter hereof or of any future addendum hereto. With respect to any public disclosure or filing, each of the Buyer and the Seller agrees to submit to the other party a copy of the proposed document to be filed or disclosed and will give the other party a reasonable period of time in which to review such document (...)
2011
Efforts
In the event that any Person commences a Private Action that seeks, or could result in, a Private Action Order, each Party against which the Private Action is brought shall use its reasonable best efforts to contest, resist, oppose and defend against such Private Action and against the entry of any Private Action Order so as to allow the Transactions to be consummated as contemplated by the Transaction Documents without the imposition of any further conditions or requirements (...)
2012
Preparation of the Proxy Statement; Company Shareholders Meeting
As soon as practicable following the date of this Agreement, the Company shall prepare and file with the SEC the Proxy Statement in preliminary form relating to the Company Shareholders Meeting. The Company will cause the Proxy Statement to comply as to form in all material respects with the applicable provisions of the Exchange Act and shall use its best efforts to cause the Proxy Statement to be mailed to the shareholders of the Company as soon as practicable after confirmation from the SEC or its staff that it will not comment on, or has no additional comments on, the Proxy Statement (...)
2013
Consents and Filings
The parties will use their respective reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate and make effective in the most expeditious manner possible the transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate such transactions, (ii) taking all actions necessary to obtain (and cooperating with each other in obtaining) any consent, authorization, order or approval of, or any exemption by, any Governmental Authority and (iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement (...)
2014
Consents and Filings
The Company will use reasonable best efforts to promptly cause the Shares to be approved for listing on the Nasdaq Global Select Market, subject only to official notice of issuance.
2014
Efforts
Except with respect to those matters as to which a different efforts standard is explicitly stated, each Party shall use its reasonable best efforts to take, or cause to be taken, all appropriate action (and to do, or shall cause to be done, all things necessary, proper or advisable under Law) to consummate the Transactions as promptly as practicable and to make or obtain all Consents required in connection therewith.
2014
Services Contract
Consulting Agreement
The Consultant shall give best efforts to the Company and shall devote such time and attention as shall be necessary to adequately discharge his duties hereunder, but the Consultant shall not be obliged to devote his full time to the Company. The Consultant shall be available to perform its duties hereunder at such times as are reasonably necessary and convenient for the Company - (International Contracting: Law and Practice - Larry A. DiMatteo - §8.06 - S. 284).

X shall enter into all agreements and undertake all obligations as are reasonably necessary to permit and/or facilitate the provisions of the Services by Y hereunder (...) Y shall make available the services of such officers, employees, agents, consultants and/or directors of Y as may be necessary in the reasonable determination of Y to carry out and perform the Services as herein contemplated (...)
2002

(...) X and Y agree that they shall, and they shall cause their respective officers, directors, agents, consultants and employees to use their respective reasonable commercial efforts to prevent the publication or disclosure of any such information during the term of this Agreement and thereafter.
2002

The Parties hereto agree to execute suh further and other assurances and documents and to do all such things and actions which are reasonably required to carry out the purpose and intent of this Agreement (...)
2002
Marketing and Promotion
X and its Personnel shall use their best efforts to actively promote, market, and sell Company's (...) Equipment to actual and potential Subbscribers (...) X and its Personnel shall (...) promote a positive image and good public relations for Company (...) maintain an adequate staff of qualified and experienced employees, operate and supply the organization, equipment, facilities, materials and other resources necessary in order to perform this Agreement (...)
2003
Delivery of the Collateral
(...) In the event the Collateral Agent receives notice of any discretionary corporate action in respect of the Collateral, including, without limitation, the solicitation of a vote in respect of the Collateral, the Collateral Agent shall request written instructions from the Pledgor, signed by a person designated by the Pledgor in an Incumbency Certificate substantially in the form attached hereto as Exhibit {X} as authorized to act on its behalf in respect of this Agreement (each such person, an "Authorized Person of the Pledgor") in respect of such corporate action and shall use commercially reasonable efforts to act upon such instructions (...)
2005
License to Licensee
With respect to X Licensed Patents jointly owned with others, Licensee recognizes that there are countries which require the express consent of the coowners for the licensing of such jointly owned Patents. X shall use all reasonable efforts to obtain such consent. If however in spite of such reasonable efforts, X is unable to obtain such consent, the resulting inability of X to make its purported license grant full and effective shall not be considered a breach of this Agreement.
2006
General Standard of Service
Except as otherwise agreed to in writing by the Parties or as described in this Agreement, the Parties agree that the nature, quality and standard of care applicable to the delivery of the Services hereunder, and the skill levels of the employees providing such Services, shall be substantially the same as or consistent with those which each Party exercises or employs in providing similar services for itself and its Subsidiaries (...) the Parties will use their reasonable best efforts to reach an agreement as to estimated Service Costs for a fiscal quater (...)
2007
Permitted Investments
All amounts deposited in the Project Accounts and not disbursed on the same day deposited shall be invested, on the same day as deposited or, with respect to amounts deposited with the Collateral Agent after 11:00 a.m. (New York time), the Collateral Agent shall use its best efforts to invest on the same day as deposited, or otherwise on the next Business Day, in Permitted Investments specified in writing by the Borrower. The Borrower shall use its best efforts to assure that the final maturity of any such investment does not extend beyond the time when the amounts used to acquire such investments would be required for any other application under this Agreement (...)
2009
Powers and Duties of the Administrator
The Administrator shall take such actions on its own behalf or on behalf of the Company as it from time to time considers necessary or appropriate to enable it to perform its obligations under this Agreement, subject to customary oversight and supervision of the Company, its Board of Directors and its executive officers. The Administrator shall use its reasonable best efforts to provide the Services hereunder in a commercially reasonable manner and with the care, diligence and skill that a prudent manager would possess and exercise, except that the Administrator may allocate available supplies, manpower and services in such manner as in the prevailing circumstances the Administrator, acting reasonably, considers to be fair and reasonable.
2010
Covenants of the Administrator
The administrator shall (...) use its reasonable efforts to have all material property of the Company clearly identified as such, held separately from property of the Administrator and, whre applicable, in safe custody; use its reasonable best efforts to have all property of the Company (other than money to be deposited to any bank account of the Company) transferred to or otherwise held in the name of the Company or any nominee or custodian appointed by the Company; use its reasonable best efforts to retain at all times a qualified staff so as to maintain a level of expertise sufficient to provide the Services; use its reasonable best efforts to keep full and proper books, records and accounts showing clearly all transactions relating to its provision of the Services in accordance with established general commercial practices and in accordance with IFRS, and allow the Company and its representatives to audit and examine such books, records and accounts at any time during customary business hours.
2010
Construction & O&M Contract
Scope of the Works
The Contractor shall execute the Works with due care and diligence within the Time for Completion and provide all Contractor's Equipment, labor and services necessary therefor and for carrying out his obligations under the Contract, at his own expenses. The Contractor shall perform all such work and/or supply all such Contractor's Equipment not specifically mentioned in the Contract but which can be reasonably inferred from the Contract as being required for the proper performance (...) as if such work and/or Contractor's Equipment were expressly mentioned in the Contract.
1997
Distributorship Agreement
Special Obligations
The Second Party shall undertake to (...) exercise all reasonable care and diligence (...) perform all works necessary to execute contracts (...)
1983
Loan Contract
Miscellaneous
(...) The Company and Y shall use its reasonable best efforts to perform such further acts and things as X may reasonably request in order to carry out the intent and accomplish the purposes of the binding provisions of this Term Sheet.
Interest Rates
Each Reference Bank agrees to use its best efforts to furnish quotations to the Administrative Agent as contemplated by this Section (...)
2011
Supplemental Financing Event
(...) the Borrower shall have used its best efforts to timely satisfy the conditions to subsequent Loans set forth in Section X in respect of the requested Loan (...)
2012
Permitted Alternative Bridge Financing
In the event the Lender shall elect in its sole discretion to acquire or refinance any Permitted First Priority Bridge Indebtedness, the Borrower shall use its reasonable best efforts to facilitate such acquisition or refinancing with the effect that the Lender shall thereupon hold a first priority security interest in the Collateral.
2012
Existence; Conduct of Business
Each Loan Party will, and will cause each Subsidiary to, (a) do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, qualifications, licenses, permits, franchises, governmental authorizations, intellectual property rights, licenses and permits material to the conduct of its business, and maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted; provided that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section X, and (b) carry on and conduct its business in substantially the same manner and in substantially the same fields of enterprise as it is presently conducted.
2012
Organization
(...) Borrower shall do all things necessary to preserve and to keep in full force and effect its existence, rights and privileges, and shall comply with all regulations, rules, ordinances, statutes, orders and decrees of any governmental or quasi-governmental authority or court applicable to Borrower and Borrower's business activities.
2012
Asset Transfer Agreement
Best Efforts
Subject to this Article X, the party affected by Force Majeure may suspend the performance of its obligations under this Agreement to the extent and for the duration thereof until the effect of the Force Majeure no longer operates. However, that party shall exert its best efforts to remove any impediments resulting from the Force Majeure and to minimize to the greatest possible extent any damages incurred. With the agreement of the parties, the term of this Agreement shall be extended by the period of such suspension without penalty to any party.
2009
Merger Agreement
Conduct of Business of the Company
Conduct of Business of the Company. During the period from the date hereof to the Effective Time, except as otherwise expressly set forth in Part X of the Disclosure Schedule, as required by Law, as consented to in writing in advance by Parent (which consent shall not be unreasonably withheld, conditioned or delayed) or as otherwise contemplated or required by this Agreement, (i) the Company shall, and shall cause each of its Subsidiaries to, carry on its business in all material respects in the Ordinary Course of Business and use reasonable best efforts to preserve substantially intact its current business organization, preserve its material assets and properties in good repair and condition, keep available the services of its current officers and other key Employees and maintain its existing material business relationships with customers, suppliers, distributors, others having business dealings with the Company and its Subsidiaries, and Governmental Authorities having regulatory dealings with the Company and its Subsidiaries, and (ii) the Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, do any of the following (...)
2013
No solicitation
From the date hereof until the Effective Time, or, if earlier, the termination of this Agreement in accordance with Section X, the Company shall, and shall cause its Subsidiaries and direct its or their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any person or group (other than a Qualified Pre-Existing Bidder) conducted theretofore by the Company, its Subsidiaries or any of their respective Representatives with respect to any Acquisition Proposal and shall use its reasonable best efforts to require any other parties who have made or have indicated an intention to make an Acquisition Proposal to promptly return or destroy any confidential information previously furnished by the Company, any of its Subsidiaries or any of their respective Representatives to such parties (other than a Qualified Pre-Existing Bidder) (...)
2013
Preparation of Proxy Statement
(...) The Company shall use its reasonable best efforts to resolve, and each Party agrees to consult and cooperate with the other Parties and use reasonable best efforts in resolving, all SEC comments with respect to the Proxy Statement as promptly as practicable after receipt thereof and to cause the Proxy Statement in definitive form to be cleared by the SEC as promptly as reasonably practicable following the filing thereof.
2013
Mailing of Proxy Statement; Shareholders' Meeting
(...) Unless this Agreement has been terminated pursuant to Section X, the Company shall use reasonable best efforts to solicit proxies in favor of the approval of this Agreement and to ensure that all proxies solicited in connection with the Shareholders' Meeting are solicited in compliance with all applicable Laws and all rules of the NYSE (...)
2013
Best efforts; Approvals; Transaction Litigation
Upon the terms and subject to the conditions set forth in this Agreement, each of the Parties agrees to use its best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable to consummate, as promptly as reasonably practicable, the Merger and the other transactions contemplated by this Agreement, including using best efforts to (...)
2013
Access to Information
The Company shall use its best efforts to provide to Acquiror and its accountants, counsel and other representatives by {Month} {Day}, {Year}, copies of (i) the unaudited consolidated balance sheet as of {Month} {Day}, {Year} and the related unaudited consolidated statements of income, cash flow and stockholders' equity for the nine (9) months then ended, all as reviewed by PricewaterhouseCoopers LLP, and (ii) the audited consolidated balance sheet as of {Month} {Day}, {Year} and the related audited consolidated statements of income, cash flow and stockholders' equity for the twelve (12) month period then ended, all as audited by PricewaterhouseCoopers LLP (the "Annual Audited Financial Statements") (...)
2013
Expenses
(...) The Company shall use its best efforts to pay all Transaction Expenses prior to the Closing Date, and no Transaction Expenses shall be incurred by the Company or on behalf of the or the Surviving Corporation after the Closing Date without the express prior written consent of Acquiror (...)
2013
Cooperation on Tax Matters
(...) Acquiror and the Stockholders' Agent further agree, upon request, to use their commercially reasonable efforts to obtain any certificate or other document from any governmental authority or any other Person as may be necessary to mitigate, reduce or eliminate any Tax that could be imposed (including, but not limited to, with respect to the transactions contemplated hereby).
2013
Pledge Agreement
Force Majeure
The Party affected by Force Majeure shall not assume any liability under this Agreement. However, subject to the Party affected by Force Majeure having taken its reasonable and practicable efforts to perform this Agreement, the Party claiming for exemption of the liabilities may only be exempted from performing such liability as within limitation of the part performance delayed or prevented by Force Majeure. Once causes for such exemption of liabilities are rectified and remedied, both parties agree to resume performance of this Agreement with their best efforts.
2010
Assigned Contracts
Such Grantor will use its best efforts to secure all consents and approvals necessary or appropriate for the assignment to or for the benefit of the Agent of any Assigned Contract held by such Grantor having an aggregate contract value in excess of ${X} and to enforce the security interests granted hereunder (...)
2012
Joint Venture
Post-Closing Statements
After the Closing Date the Members shall use diligent efforts and shall cooperate in good faith to prepare a statement indicating the Actual Pre-Closing Development Costs, the Actual Pre-Opening Costs and the Actual Pre-Closing Residential Proceeds ("Post-Closing Statement"). X shall use best efforts to complete the Post-Closing Statement no later than sixty (60) days following the Closing Date, and X shall promptly provide to Y's accounting and financial advisors all documentation and supporting materials reasonably requested to confirm the amounts indicated in the Post-Closing Statement.
2007
Confidential Treatment of Information
Each of the Members agrees, and shall cause each of its Affiliates (i) not to disclose any material information concerning the Company or its business to the press or the general public without the approval of the other Member, such approval not to be unreasonably withheld or delayed and (ii) to retain in strict confidence any proprietary confidential information and trade secrets of the other Member, whether disclosed prior to or after the date hereof, and not to use or disclose to persons other than the Member or its Affiliates ("third parties"), and to use its best efforts to cause its employees, agents and consultants not to use or disclose to third parties, such proprietary confidential information or trade secrets without the approval of the other Member (...)
2007
Lease Contract
Landlord to Provide Services
The Landlord will use all reasonable endeavours to maintain repair amend (renew where beyond economic repair) clean repaint and redecorate to a standard which the Landlord reasonably considers adequate: (a) the structure of the Building and in particular the roof void and main structural walls (b) the Common Parts.
2009
Mortgage Financing Contract
Maintenance

Subject to the Mortgagor's rights of alteration pursuant to Section 3 hereof, the Mortgagor will maintain and operate the Sands and the hotel that is the subject of the Madison House Lease at a quality level at least as high as that existing on the date hereof and keep the Mortgaged Property in good condition and repair (subject to ordinary wear and tear), will not commit or suffer any waste of the Mortgaged Property and will comply with, or cause to be complied with, all Statutes, ordinances and requirements of any Governmental Authority to which the Mortgaged Property are subject and which failure to comply therewith would have a materially adverse effect on the Mortgaged Property.


2004
2. Duty of Care
Services Contract
Delegation of Duties
The Collateral Agent may execute any of the rights, remedies, powers, privileges, duties or obligations under this Agreement and the other Loan Documents to which it is a party either directly or by or through nominees or agents, and shall not be liable for any misconduct or negligence of any such nominee or agent appointed with due care by it hereunder.
2009
Certain Rights of Collateral Agent
The Collateral Agent may consult with counsel of its selection and, as long as such counsel was selected by the Collateral Agent with due care, the advice of such counsel or any opinion of counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
2009
Limitations on Duties of the Collateral Agent
The Collateral Agent's duty of care shall be solely to deal with the Vehicle Collateral as it would deal with property of its own, the Collateral Agent shall not be liable for any error of judgment made in good faith by an officer thereof, or for any action taken or omitted to be taken by it in accordance with this Agreement, except to the extent caused by the gross negligence or willful misconduct of the Collateral Agent.
2010
Limitations on Duties of the Collateral Agent
Beyond the exercise of reasonable care in the custody thereof and such other duties as are expressly set forth in the Related Documents, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent with due care.
2010
Asset Management Agreement
Scope of Authority
(...) Party B shall owe a fiduciary obligation to Party A. Party B shall conduct the investment management of Entrusted Assets with due care and with the same degree of experience, skills, judgment and care as those used for its own funds (...)
2006
A project of CENTRAL, University of Cologne.