Common use of Financial Capacity Clause in Contracts

Financial Capacity. Parent has delivered to the Company a true and complete copy of the executed Equity Commitment Letter, which has not been amended or modified prior to the execution of this Agreement. The aggregate proceeds of the Equity Financing, along with the Company Cash on Hand, will be sufficient to fund (i) the payment of the aggregate Transaction Consideration for the acquisition or conversion of all shares of Company Common Stock (other than the Cancelled Shares) pursuant to the Merger (assuming no Dissenting Shares) and all consideration payable pursuant to this Agreement in respect of Company Stock Awards, and (ii) the payment of all fees and expenses required to be paid by Parent or Merger Sub at Closing in connection with the Transactions (such amount, the “Required Funding Amount”). As of the date hereof, the commitment contained in the Equity Commitment Letter has not been withdrawn, modified or rescinded in any respect. The Equity Commitment Letter is in full force and effect against Parent and, to the Knowledge of Parent, each other party thereto and represents valid, binding and enforceable obligations of Parent and, to the Knowledge of Parent, each other party thereto (subject to the Bankruptcy and Equity Exception). As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, no event has occurred of which Parent is aware that, with or without notice, lapse of time or both, would constitute a breach or default on the part of Parent or any other party thereto under any term of the Equity Commitment Letter that would reasonably be expected to materially impair or adversely affect the Equity Financing and the timely receipt of the proceeds thereof. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that it or any other party to the Equity Commitment Letter will be unable to satisfy on a timely basis any applicable Financing Condition or their respective obligations under the Equity Commitment Letter. Except as set forth in the Equity Commitment Letter, there are no conditions precedent or other contingencies related to the funding of the full amount of the Equity Financing other than the applicable Financing Conditions. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that (i) any of the Financing Conditions will not be satisfied or (ii) the Equity Financing will not be made available in full to Parent on the Closing Date. Parent and Xxxxxx Sub expressly agree and acknowledge that their obligations hereunder, including Xxxxxx’s and Xxxxxx Sub’s obligations to consummate the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of any financing.

Financial Capacity. Parent Buyer has delivered to the Company Seller a true true, accurate and complete copy of the executed Equity Commitment Letter by Deerfield pursuant to which Deerfield has agreed to lend the amounts set forth therein on the terms and subject only to the conditions set forth therein, for the purpose of funding the transactions contemplated by this Agreement (the financing contemplated by the Commitment Letter, which has not been amended or modified prior to the execution of this Agreement. The aggregate proceeds of the Equity Financing, along with the Company Cash on Hand, will be sufficient to fund (i) the payment of the aggregate Transaction Consideration for the acquisition or conversion of all shares of Company Common Stock (other than the Cancelled Shares) pursuant to the Merger (assuming no Dissenting Shares) and all consideration payable pursuant to this Agreement in respect of Company Stock Awards, and (ii) the payment of all fees and expenses required to be paid by Parent or Merger Sub at Closing in connection with the Transactions (such amount, the “Required Funding AmountDebt Financing”). As of the date hereof, the commitment contained in the Equity Commitment Letter has not been withdrawn, modified or rescinded in any respect. The Equity Commitment Letter is in full force and effect against Parent and, to the Knowledge of Parent, each other party thereto and represents valid, binding and enforceable obligations of Parent and, to the Knowledge of Parent, each other party thereto (subject to the Bankruptcy and Equity Exception). As of the date of this Agreement, (a) the Commitment Letter is in full force and effect and constitutes legal, valid and binding obligations of Nuvo and, to the knowledge of Nuvo, Deerfield, (b) the Commitment Letter has not been amended or modified and no such amendment or modification is contemplated by Nuvo, and (c) assuming the satisfaction of the conditions set forth in Section 6.1 therein, the Debt Financing will be sufficient to pay the Purchase Price and Section 6.2, no event has occurred of which Parent is aware that, with or without notice, lapse of time or both, would constitute a breach or default on the part of Parent or any other party thereto amounts to be paid or repaid by Buyer under any term this Agreement or as a result of the Equity Commitment Letter that would reasonably be expected transactions contemplated by this Agreement. There are no conditions precedent related to materially impair or adversely affect the Equity Financing and the timely receipt funding of the proceeds thereoffull amount of the Debt Financing other than as expressly set forth in the Commitment Letter; and there are no side letters or other contracts, understandings or arrangements (oral or written) related to the Debt Financing between Nuvo and Deerfield other than the Commitment Letter. As of the date of this Agreement, assuming to Buyers knowledge and excluding any conditions where the failure to be so satisfied is a result of Seller’s breach of any of its obligations under this Agreement or a breach by Deerfield, no event has occurred that (with or without notice or lapse of time or both) would reasonably be expected to constitute or result in a breach or default under the Commitment Letter or make Nuvo unable to satisfy on a timely basis any term or condition of the Commitment Letter (whether or not such condition is contained in the Commitment Letter), and Buyer is not aware of any fact or occurrence that makes any of the representations or warranties of Nuvo relating to Nuvo in the Commitment Letter inaccurate in any material respect. Subject to the terms and conditions of the Commitment Letter and subject to the satisfaction of the conditions set forth contained in Section 6.1 and Section 6.2, Parent has no (x) Buyer does not have any reason to believe that it or any other party to the Equity Commitment Letter Nuvo will be unable to satisfy on a timely basis any applicable Financing Condition term or their respective obligations under the Equity Commitment Letter. Except as set forth condition to be satisfied by it and contained in the Equity Commitment Letter, there are no conditions precedent or other contingencies related to the funding of the full amount of the Equity Financing other than the applicable Financing Conditions. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that (i) any of the Financing Conditions will not be satisfied or (iiy) the Equity Financing aggregate proceeds contemplated by the Commitment Letter will not be made available in full to Parent on the Closing Date. Parent and Xxxxxx Sub expressly agree and acknowledge that their obligations hereunder, including Xxxxxx’s and Xxxxxx Sub’s obligations sufficient for Buyer to consummate the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of any financingtransactions contemplated hereby upon the terms and conditions contemplated hereby and pay all related fees and expenses related thereto.

Financial Capacity. Parent has delivered to the Company a true and complete copy of the executed equity commitment letter dated as of the date hereof (the “Equity Commitment Letter, ”) from the Guarantor to provide to Parent on the Closing Date the Equity Financing in cash in an aggregate amount of at least $1,269,638,085 which Equity Commitment Letter provides that the Company is an express third party beneficiary thereto. The Equity Commitment Letter has not been amended or modified prior to the execution date of this Agreement. The aggregate proceeds of the Equity Financing, along with the Financing and Company Cash on Hand, Hand will be sufficient to fund finance (ia) the payment of the aggregate Transaction Merger Consideration for the acquisition or conversion of all shares and Vested RSU Consideration to which holders of Company Common Stock and Company RSU Awards will be entitled at the Effective Time pursuant to this Agreement, (other than b) the Cancelled Sharespayment of the amounts due upon the election of holders to convert (including any make-whole with respect thereto) their Convertible Notes in connection with the Transactions pursuant to the Merger (assuming no Dissenting Shares) Convertible Notes Indentures and all consideration payable to repurchase the Convertible Notes as required pursuant to this Agreement in respect Article 15 of Company Stock Awards, the Convertible Notes Indentures and (iic) the payment of all fees and expenses expenses, in the case of each of clauses (a) through (c), to the extent required to be paid by Parent or Merger Sub in cash at the Closing Date in connection with the Transactions (such amount, consummation of the “Required Funding Amount”)Transactions. As of the date hereofof this Agreement, (i) the commitment commitments contained in the Equity Commitment Letter has have not been withdrawn, modified withdrawn or rescinded in any respect. The , and (ii) the Equity Commitment Letter is in full force and effect against Parent and, to the Knowledge of Parent, each other party thereto and represents valid, binding and enforceable obligations of Parent and, to the Knowledge of Parent, and each other party thereto (subject to the Bankruptcy Enforceability Exceptions) to provide the financing contemplated thereby subject only to the satisfaction or waiver of the Financing Conditions. Assuming performance by the Company and Equity Exception). As its Affiliates of their respective obligations under this Agreement, as of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, no event has occurred of which Parent is aware thatwhich, with or without notice, lapse of time or both, would constitute a material breach or default on the part of Parent or any other party thereto under any term of the Equity Commitment Letter that which would reasonably be expected to materially impair or adversely affect the Equity Financing and the timely receipt of the proceeds thereofFinancing. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that it or any other party to the Equity Commitment Letter thereto will be unable to satisfy on a timely basis any applicable Financing Condition or their respective obligations under term of the Equity Commitment Letter. Except As of the date of this Agreement, except as set forth in the Equity Commitment Letter, there are no conditions precedent or other contingencies related to the funding of the full amount of the Equity Financing other than the applicable Financing Conditions. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that (i) any of the Financing Conditions will not be satisfied or (ii) the Equity Financing will not be made available in full to Parent on the Closing Date. Parent and Xxxxxx Sub expressly agree and acknowledge that their obligations hereunder, including Xxxxxx’s and Xxxxxx Sub’s obligations to consummate the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of any financing.

Financial Capacity. Parent As of the date of this Agreement, Xxxxxx has delivered to the Company a true and complete copy of (a) the executed Equity Commitment Letters from the Guarantors to provide to Parent the Equity Financing in cash in an aggregate amount of at least $3,990,000,000, which Equity Commitment Letters each provide that the Company is an express third party beneficiary thereto and (b) the executed Debt Commitment Letter and the Debt Fee Letter, which Debt Fee Letter has been redacted for fees, “securities demand” provisions, pricing terms and pricing caps, “market flex” provisions and other terms that are customarily redacted (including any dates related thereto), none of which would reasonably be expected to reduce the aggregate principal amount of the Debt Financing to be funded on the Closing Date or impose additional conditions precedent to the funding of the Debt Financing on the Closing Date. The Debt Commitment Letter has not been amended or modified in any manner prior to the execution date of this Agreement. The As of the date of this Agreement, neither Parent nor any of its Affiliates has entered into any agreement, side letter or other commitment or arrangement relating to the financing of the Transactions that imposes or permits the imposition of conditions precedent to the funding of the Debt Financing on the Closing Date or would otherwise affect the availability of the Debt Financing on the Closing Date, in each case, other than the Commitment Letters and the Debt Fee Letter. Assuming satisfaction of the conditions set forth in Section 8.01 and Section 8.02 and that the Financing is funded on the Closing Date in accordance with the Financing Letters, as of the date of this Agreement, the aggregate proceeds of the Debt Financing (both before and after giving effect to the exercise of any or all “market flex” provisions related thereto) and the Equity Financing, along with the Company Cash on Hand, Financing will be sufficient to fund finance (i) the payment of the aggregate Transaction Merger Consideration, Option Consideration for the acquisition or conversion of all shares and PSU/RSU Consideration to which holders of Company Common Stock (other than Stock, Company Options, Company PSU Awards and Company RSU Awards will be entitled at the Cancelled Shares) pursuant to the Merger (assuming no Dissenting Shares) and all consideration payable Effective Time pursuant to this Agreement in respect Agreement, (ii) the repayment or refinancing of Company Stock Awards, the Company’s outstanding debt facilities and (iiiii) the payment of all fees and expenses expenses, in the case of each of clauses (i) through (iii), to the extent required to be paid by Parent or Merger Sub at on the Closing Date in connection with consummation of the Transactions (the minimum amount sufficient to finance such amountpayments, the “Required Funding Amount”). As of the date hereofof this Agreement, the commitment commitments contained in the Equity Commitment Letter has Letters have not been withdrawn, modified withdrawn or rescinded in any respect. The Equity As of the date of this Agreement, the Commitment Letter is Letters are in full force and effect against Parent and, to the Knowledge of Parent, each other party thereto and represents represent valid, binding and enforceable obligations (subject to the Enforceability Exceptions) of Parent and, to the Knowledge of Parent, each other party thereto (to provide the financing contemplated thereby subject only to the Bankruptcy satisfaction or waiver of the Financing Conditions. Parent has fully paid (or caused to be paid) any and Equity Exception)all commitment fees and other amounts that are due and payable on or prior to the date of this Agreement in connection with the Financing. As Assuming performance by the Company and its Affiliates of their respective obligations under this Agreement, as of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, no event has occurred of which Parent is aware thatwhich, with or without notice, lapse of time or both, would constitute a breach or default on the part of Parent or or, to the Knowledge of Parent, any other party thereto under any term of the Equity Commitment Letter that would reasonably be expected to materially impair or adversely affect the Equity Financing and the timely receipt of the proceeds thereofLetters. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that it or any other party to the Equity Commitment Letter thereto will be unable to satisfy on a timely basis any applicable Financing Condition or their respective obligations under the Equity Commitment Letter. Except as set forth in the Equity Commitment Letter, there are no conditions precedent or other contingencies related to the funding term of any of the full amount of the Equity Financing other than the applicable Financing ConditionsCommitment Letters. As of the date of this Agreement, assuming the Assuming satisfaction of the conditions set forth in Section 6.1 8.01 and Section 6.28.02 and completion of the Marketing Period, as of the date of this Agreement, Parent has no reason to believe that (i) any of the Financing Conditions will not be satisfied or (ii) the Equity Financing will not be made available in full to Parent on the Closing Date. Parent and Xxxxxx Sub expressly agree and acknowledge that their obligations hereunder, including Xxxxxx’s and Xxxxxx Merger Sub’s obligations to consummate the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt consummation of any financingfinancing arrangements, Parent’s or Merger Sub’s obtaining of any financing or the availability, grant, provision or extension of any financing to Parent or Merger.

Financial Capacity. Parent (a) Buyer has delivered to the Company a Seller true and complete copy copies of the executed Equity Commitment Letter, which has not been amended or modified prior to the execution of this Agreement. The aggregate proceeds of the Equity Financing, along with the Company Cash on Hand, will be sufficient to fund (i) the payment of final and fully executed equity commitment letter, dated the aggregate Transaction Consideration for date hereof, between Buyer and those certain equity investors party thereto (the acquisition or conversion of all shares of Company Common Stock (other than the Cancelled Shares) “Equity Commitment Letter”), pursuant to which such equity investors have each committed, subject to (and only to) the Merger terms and conditions thereof, to invest the cash amounts set forth therein in the manner set forth therein, and of which Seller is a third party beneficiary and entitled to specifically enforce the terms thereof (assuming no Dissenting Sharesthe “Equity Financing”) and all consideration payable pursuant to this Agreement in respect of Company Stock Awards, and (ii) the payment final and fully executed debt commitment letter, dated the date hereof, among Buyer, Credit Suisse Loan Funding LLC, Credit Suisse AG, Cayman Islands Branch and Citizens Bank, N.A. (together with all exhibits, schedules, term sheets and attachments thereto, the “Debt Commitment Letter” and, together with the Equity Commitment Letter, the “Financing Letters”), pursuant to which the Debt Financing Sources party thereto have committed, subject to (and only to) the terms and conditions thereof, to lend to Buyer the amounts set forth therein (the “Debt Financing” and, together with the Equity Financing, the “Financing”). Assuming the satisfaction of the conditions set forth in the Financing Letters, the aggregate amounts to be provided pursuant to the Financing Letters, together with Buyer’s cash on hand and amounts available to be drawn under Buyer’s revolving credit facility, will be sufficient for Buyer, when required by the terms of this Agreement, to (A) pay an amount in cash equal to the Purchase Price pursuant to Section 2.3 and (B) pay any and all fees and expenses required to be paid by Parent or Merger Sub at Closing Buyer in connection with the Contemplated Transactions and the Financing. Buyer has also delivered to Seller a true and complete copy of any final fee letter (which may be redacted as to fee amounts, “market flex” terms and other customary commercial terms other than any such amount, terms that would (x) reduce the “Required Funding Amount”). As amount of the date hereofDebt Financing or (y) impose any additional conditions or other contingencies (or adversely amend, the commitment contained in the Equity Commitment Letter has not been withdrawn, modified modify or rescinded in expand any respect. The Equity Commitment Letter is in full force and effect against Parent and, existing conditions or other contingencies) to the Knowledge of Parent, each other party thereto and represents valid, binding and enforceable obligations of Parent and, to the Knowledge of Parent, each other party thereto (subject to the Bankruptcy and Equity Exception). As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, no event has occurred of which Parent is aware that, with or without notice, lapse of time or both, would constitute a breach or default on the part of Parent or any other party thereto under any term of the Equity Commitment Letter that would reasonably be expected to materially impair or adversely affect the Equity Debt Financing and the timely receipt of the proceeds thereof. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that it or any other Sources party to the Equity Debt Commitment Letter will to fund the Debt Financing) executed in connection with the Debt Commitment Letter (any such fee letter, as it may be unable to satisfy on redacted, a timely basis any applicable Financing Condition or their respective obligations under the Equity Commitment “Fee Letter. Except as set forth in the Equity Commitment Letter, there are no conditions precedent or other contingencies related to the funding of the full amount of the Equity Financing other than the applicable Financing Conditions. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that (i) any of the Financing Conditions will not be satisfied or (ii) the Equity Financing will not be made available in full to Parent on the Closing Date. Parent and Xxxxxx Sub expressly agree and acknowledge that their obligations hereunder, including Xxxxxx’s and Xxxxxx Sub’s obligations to consummate the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of any financing”).

Financial Capacity. Parent As of the date hereof, Xxxxxx has delivered to the Company a true and complete copy of the executed Equity Commitment LetterCredit Agreement and any fee letters or ancillary agreements entered into in connection therewith (with fee amounts, economic terms and any other provision thereof to be redacted in a customary manner as may be required by the applicable Debt Financing Sources), each of which has not been amended amended, modified or modified terminated prior to the execution of this Agreement. The Assuming the Debt Financing is funded in accordance with the terms of the Credit Agreement and assuming satisfaction of all of the conditions to Closing set forth in Article VI, the aggregate proceeds of the Equity Debt Financing, along with the Company Cash on Hand, will be sufficient to fund (i) the payment of the aggregate Transaction Consideration for the acquisition or conversion of all shares of Company Common Stock (other than the Cancelled Shares) pursuant to the Merger (assuming no Dissenting Shares) and all consideration payable pursuant to this Agreement in respect of Company Stock Equity Awards, and (ii) the payment of all fees and expenses required to be paid by Parent or Merger Sub at Closing in connection with the Transactions (such amount, the “Required Funding Amount”). As of the date hereof, the commitment contained in the Equity Commitment Letter Credit Agreement has not been withdrawn, modified or rescinded in any respect. The Equity Commitment Letter As of the date hereof, the Credit Agreement is in full force and effect against Parent or an indirect parent of Parent and, to the Knowledge of Parent, each other party thereto and represents valid, binding and enforceable obligations of Parent and, to the Knowledge of Parent, each other party thereto (subject to the Bankruptcy and Equity Exception). Parent has fully paid (or caused to be paid) any and all commitment fees and other amounts required to be paid by the Credit Agreement and any fee letters or ancillary agreements entered into in connection therewith that are due and payable on or prior to the date of this Agreement. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, no event has occurred of which Parent is aware that, with or without notice, lapse of time or both, would constitute a breach or default on the part of Parent or any other party thereto under any term of the Equity Commitment Letter Credit Agreement that would reasonably be expected to materially impair or adversely affect the Equity Debt Financing and the timely receipt of the proceeds thereof. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that it or any other party to the Equity Commitment Letter will be unable to satisfy on a timely basis any applicable Debt Financing Condition on or their respective obligations under the Equity Commitment Letterprior to Closing Date. Except as set forth in the Equity Commitment LetterCredit Agreement, there are no conditions precedent or other contingencies related to the funding of the full amount of the Equity Debt Financing other than the applicable Debt Financing Conditions. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that (i) any of the Financing Conditions will not be satisfied or (ii) the Equity Debt Financing will not be made available in full to Parent on the Closing Date. Parent Notwithstanding anything to the contrary contained herein, Xxxxxx and Xxxxxx Sub expressly agree that a breach of the representations and acknowledge that their obligations hereunderwarranties in this Section 4.11 shall not result in the failure of the conditions to the Closing set forth in Section 6.3(a) if (notwithstanding such breach), including Xxxxxx’s and Xxxxxx Sub’s obligations subject to the satisfaction or waiver by Parent of the conditions to closing set forth in Section 6.1 and Section 6.2, Parent is willing and able to, and actually does, consummate the MergerClosing on the Closing Date. There are no side letters, are not subject tofee letters or other written Contracts containing any conditions to the funding of the full amount of the Debt Financing other than as expressly set forth in, or conditioned oncontemplated by, Parent’s or Merger Sub’s receipt of any financingthe Credit Agreement.

Financial Capacity. Parent has delivered At or prior to the Company a true Closing, Buyer will have, pursuant to the Commitment Letters and/or any Substitute Financing, sufficient cash, available lines of credit or other sources of immediately available funds to pay in cash the Merger Consideration in accordance with the terms of Article IV and any other amounts to be paid by it hereunder. Attached hereto as Exhibit B are true, correct and complete copy signed counterpart(s) of (a) the commitment letter(s), dated as of the executed date hereof, providing for debt financing in respect of the transactions contemplated by this Agreement (the “Debt Commitment Letters”) and (b) the commitment letter(s), dated as of the date hereof, pursuant to which Affiliates of Buyer have agreed with the parent company of Buyer to make an equity investment in such parent company in connection with the transactions contemplated hereby (the “Equity Commitment Letter” and together with the Debt Commitment Letters, the “Commitment Letters”), which has not been amended or modified prior debt financing contemplated by the Debt Commitment Letters, when taken together with the amount of equity capital to be provided pursuant to the execution of this Agreement. The aggregate proceeds of the Equity Financing, along with the Company Cash on HandCommitment Letter, will be sufficient to fund (i) the payment of the aggregate Transaction Consideration for the acquisition or conversion of all shares of Company Common Stock (other than the Cancelled Shares) pursuant to pay the Merger (assuming no Dissenting Shares) and Consideration, all consideration payable pursuant to this Agreement in respect of Company Stock Awards, and (ii) the payment of all fees and expenses required other amounts to be paid by Parent or Merger Sub at Closing Buyer hereunder and all expenses of Buyer incurred in connection with the Transactions (such amount, consummation of the “Required Funding Amount”)transactions contemplated hereby. As of the date hereof, the commitment contained in the Equity Commitment Letter has not been withdrawn, modified or rescinded in any respect. The Equity Commitment Letter is Letters are in full force and effect against Parent andeffect, to the Knowledge of Parentare, each other party thereto and represents valid, binding and enforceable obligations of Parent and, to the Knowledge of Parent, each other party thereto (subject to the Bankruptcy and Equity Exception). As as of the date hereof, valid and binding obligations of this Agreement, assuming the satisfaction each of the parties thereto and are not subject to any contingencies or conditions that are not set forth in Section 6.1 the copies of the Commitment Letters attached hereto as Exhibit B. Other than the Commitment Letters, Buyer and Section 6.2its parent company have not entered into any agreement pursuant to which any Person has the right to modify or amend the terms of the debt financing or equity investment contemplated by the Commitment Letters. To Buyer’s Knowledge, as of the date hereof, no event has occurred of which Parent is aware thatwhich, with or without notice, lapse of time or both, would constitute a default or breach or default on the part of Parent or any other party thereto under any term or condition of the Equity Commitment Letter that would reasonably be expected to materially impair or adversely affect the Equity Financing Letters, and the timely receipt of the proceeds thereof. As as of the date of this Agreementhereof, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent Buyer has no reason to believe that it or any other party to the Equity Commitment Letter thereto will be unable to satisfy on a timely basis any applicable Financing Condition term or their respective obligations under condition of closing to be satisfied pursuant to the Equity Commitment LetterLetters. Except as set forth in the Equity Commitment Letter, there are no conditions precedent Buyer or an Affiliate thereof on its behalf has fully paid any and all commitment or other contingencies related fees required by the Debt Commitment Letters to the funding of the full amount of the Equity Financing other than the applicable Financing Conditions. As of be paid by the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that (i) any of the Financing Conditions will not be satisfied or (ii) the Equity Financing will not be made available in full to Parent on the Closing Date. Parent and Xxxxxx Sub expressly agree and acknowledge that their obligations hereunder, including Xxxxxx’s and Xxxxxx Sub’s obligations to consummate the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of any financinghereof.

Financial Capacity. Parent (a) Arion has delivered to the Company Sphinx a true true, accurate and complete copy of the executed Equity Commitment Letter, which has not been amended or modified prior to the execution of this Agreement. The aggregate proceeds of the Equity Financing, along with the Company Cash on Hand, will be sufficient to fund (i) the payment executed commitment letter, dated as of the aggregate Transaction Consideration Agreement Date, by and among Arion and the Debt Financing Sources party thereto, including all exhibits, schedules, annexes and amendments thereto (the “Debt Financing Commitment”), pursuant to which, and subject to the terms and conditions of which, the Debt Financing Sources have committed to lend the amounts set forth therein to Arion for the acquisition or conversion purpose of funding the transactions contemplated by this Agreement (such committed financing, together with, unless the context otherwise requires, any debt securities issued in lieu thereof, the “Debt Financing”). In addition, as of immediately prior to the Closing and before giving effect to the consummation of the Debt Financing, Arion Opco shall have at least $25,000,000 of Arion Cash, as well as an amount of Arion Cash sufficient to make all shares of Company Common Stock Affiliate Payments and Arion Transaction Expenses (other than financing fees, borrowing costs or similar expenses incurred in connection with the Cancelled Shares) pursuant to Debt Financing); provided that such amounts shall not be proceeds from the Merger (assuming no Dissenting Shares) and all consideration payable pursuant to this Agreement in respect revolving credit facility under Arion Existing Indebtedness. As of Company Stock Awardsimmediately after the Closing, and after giving effect to (i) the consummation of the Debt Financing, (ii) the prepayment of the Arion Existing Indebtedness outstanding as of immediately prior to the Closing Date (the “Prepayment”), (iii) the payment of all fees any Arion Transaction Expenses and expenses required (iv) any payments by Arion or its Subsidiaries to be paid by Parent any of its Affiliates owing as of or Merger Sub at Closing in connection with the Transactions Closing (such amountto the extent not irrevocably waived), including the advisory service fee (if any) pursuant to Section 4(b) of that certain Advisory Services Agreement, dated as of October 4, 2015, entered into by and among Xxxxx Xxxxx, LLC, TA Associates Management L.P. and Arion Opco (the “Required Funding AmountAffiliate Payments”), Arion Opco shall have at least $125,000,000 of Arion Cash available and freely usable (the “Post-Closing Operating Cash”); provided that at least $25,000,000 of the Post-Closing Operating Cash shall not be from proceeds of the Debt Financing. As of immediately following the date hereofClosing, the commitment contained Arion, Arion Opco and its and their Subsidiaries shall have no more than $1,500,000,000 in the Equity Commitment Letter has indebtedness for borrowed money outstanding (not been withdrawn, modified or rescinded in taking into account any respect. The Equity Commitment Letter is in full force and effect against Parent and, to the Knowledge of Parent, each other party thereto and represents valid, binding and enforceable obligations of Parent and, to the Knowledge of Parent, each other party thereto (subject to the Bankruptcy and Equity Exception). As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, no event has occurred of which Parent is aware that, with or without notice, lapse of time or both, would constitute a breach or default on the part of Parent or any other party thereto undrawn capacity under any term of the Equity Commitment Letter that would reasonably be expected to materially impair or adversely affect the Equity Financing and the timely receipt of the proceeds thereof. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that it or any other party to the Equity Commitment Letter will be unable to satisfy on a timely basis any applicable Financing Condition or their respective obligations under the Equity Commitment Letter. Except as set forth in the Equity Commitment Letter, there are no conditions precedent or other contingencies related to the funding of the full amount of the Equity Financing other than the applicable Financing Conditions. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that (i) any of the Financing Conditions will not be satisfied or (ii) the Equity Financing will not be made available in full to Parent on the Closing Date. Parent and Xxxxxx Sub expressly agree and acknowledge that their obligations hereunder, including Xxxxxx’s and Xxxxxx Sub’s obligations to consummate the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of any financingrevolving credit facility).

Financial Capacity. Parent Buyer has delivered to the Company Seller a true true, correct and complete copy of the executed Equity Commitment LetterLetter from Sponsor to invest, which has not been amended or modified prior subject to the execution terms and conditions therein, cash in the aggregate amount set forth therein (the “Equity Financing”) for the purpose of this Agreement. The aggregate proceeds satisfying all of the Equity Financingobligations of Buyer or any of its Affiliates in this Agreement or, along with to the Company Cash extent payable at Closing, under any Ancillary Agreement to which Buyer or its Affiliate is a party (including payment by Buyer of all obligations pursuant to Section 2.3, including the aggregate Closing Payment, and payment of any other fees, expenses and obligations required to be paid or satisfied by Buyer on Handthe Closing Date (the amount of such aggregate payment obligations, will be sufficient to fund the “Required Amount”)). Assuming (i) the payment of Equity Financing is funded in accordance with the aggregate Transaction Consideration for the acquisition or conversion of all shares of Company Common Stock (other than the Cancelled Shares) pursuant to the Merger (assuming no Dissenting Shares) and all consideration payable pursuant to this Agreement in respect of Company Stock Awards, Equity Commitment Letter and (ii) the payment performance by Seller of all fees and expenses required to be paid by Parent or Merger Sub at Closing in connection with the Transactions (such amountits obligations hereunder, the “Required Funding Amount”). As as of the date hereof, the commitment contained in net proceeds contemplated by the Equity Commitment Letter has not been withdrawn, modified or rescinded in any respectwill be sufficient to fund the payment by Buyer of the Required Amount. The Equity Commitment Letter is in full force and effect against Parent and, to the Knowledge of Parent, each other party thereto and represents valid, binding and enforceable obligations of Parent and, to the Knowledge of Parent, each other party thereto (subject to the Bankruptcy and Equity Exception). As of the date of except as not prohibited by this Agreement, assuming has not been withdrawn or terminated or otherwise amended or modified in any respect, and no such amendment or modification is contemplated. The Equity Commitment Letter is a legal, valid and binding obligation of Buyer and the satisfaction other parties thereto, except as may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar Laws from time to time in effect affecting generally the enforcement of the conditions set forth in Section 6.1 creditors’ rights and Section 6.2remedies, no and general principles of equity. No event has occurred of which Parent is aware thatwhich, with or without notice, lapse of time or both, would constitute a breach or default on the part of Parent or any other party thereto under any term of the Equity Commitment Letter that would reasonably be expected to materially impair constitute a default or adversely affect breach under the Equity Commitment Letter by any of the parties thereto; provided that Buyer is not making any representation or warranty regarding the accuracy of the representations and warranties in Article 3. Buyer has fully paid any and all commitment fees or other fees required by the Equity Commitment Letter to be paid on or before the date of this Agreement. The aggregate proceeds from the Equity Financing constitute all of the financing required for Buyer to consummate the transactions contemplated by this Agreement at Closing and the timely receipt payment of the proceeds thereofall associated costs and expenses to be paid by Buyer at Closing. As of the date of this Agreementhereof, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no Xxxxx does not have any reason to believe that it or any other party of the conditions to the Equity Financing will not be satisfied or that the Equity Financing will not be available to Buyer on the Closing Date; provided that Buyer is not making any representation regarding the accuracy of the representations and warranties set forth in Article 3 or compliance by Seller and the Acquired Entities with their obligations hereunder. The Equity Commitment Letter will be unable contains all of the conditions precedent to satisfy on a timely basis any applicable Financing Condition or their respective the obligations under of the parties thereunder to make the Equity Commitment Letter. Except Financing available to Buyer on the terms therein and, except as set forth in the Equity Commitment Letter, there are no conditions precedent contingencies that would permit the parties thereunder to reduce the total amount of the Equity Financing. There are no side letters or other contingencies agreements or arrangements to which Buyer or any of its Affiliates is a party related to the funding of or investing, as applicable, other than (i) as expressly set forth in the full amount Equity Commitment Letter or (ii) any such side letters, agreements or arrangements that would not adversely affect the availability of the Equity Financing other than the applicable Financing Conditions. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that (i) any of the Financing Conditions will not be satisfied or (ii) the Equity Financing will not be made available in full to Parent on the Closing Date. Parent and Xxxxxx Sub expressly agree and acknowledge that their obligations hereunder, including Xxxxxx’s and Xxxxxx Sub’s obligations to consummate the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of any financing.

Financial Capacity. Parent has delivered to the Company a true and complete copy of the executed Equity Commitment Letter, which has not been amended At or modified prior to the execution Closing, Buyer will have, pursuant to the Commitment Letters and/or any Substitute Financing, sufficient cash, available lines of this Agreementcredit or other sources of immediately available funds to pay in cash the Merger Consideration in accordance with the terms of Article III and any other amounts to be paid by it hereunder. The aggregate proceeds Attached hereto as Exhibit B are true, correct and complete signed counterpart(s) of (i) the commitment letter(s), dated as of the date hereof, providing for debt financing in respect of the transactions contemplated by this Agreement (the “Debt Commitment Letters”) and (ii) the commitment letter(s), dated as of the date hereof, pursuant to which Affiliates of Buyer have agreed with Buyer to make an equity investment in Buyer (the “Equity Financing, along Commitment Letters” and together with the Company Cash on HandDebt Commitment Letters, the “Commitment Letters”), which debt financing contemplated by the Debt Commitment Letters, when taken together with the amount of equity capital to be provided pursuant to the Equity Commitment Letters, will be sufficient to fund (i) the payment of the aggregate Transaction Consideration for the acquisition or conversion of all shares of Company Common Stock (other than the Cancelled Shares) pursuant to pay the Merger (assuming no Dissenting Shares) and Consideration, all consideration payable pursuant to this Agreement in respect of Company Stock Awards, and (ii) the payment of all fees and expenses required other amounts to be paid by Parent or Merger Sub at Closing Buyer hereunder and all expenses of Buyer incurred in connection with the Transactions (such amount, consummation of the “Required Funding Amount”)transactions contemplated hereby. As of the date hereof, the commitment contained Commitment Letters, in the Equity Commitment Letter has not been withdrawnform so delivered, modified are valid and binding obligations of Buyer or rescinded in any respect. The Equity Commitment Letter is in full force and effect against Parent Merger Sub and, to the Knowledge of ParentBuyer, each the other party parties thereto and represents valid, binding and enforceable (assuming that such Commitment Letters constitute such obligations of Parent and, to the Knowledge of Parent, each such other party thereto (parties) are in full force and effect and are not subject to the Bankruptcy and Equity Exception). As of the date of this Agreement, assuming the satisfaction of the any contingencies or conditions that are not set forth in Section 6.1 and Section 6.2the copies of the Commitment Letters attached hereto as Exhibit B, except for the payment of customary fees. Other than the Commitment Letters, Buyer has not entered into any agreement pursuant to which any Person (other than the Parties thereto) has the right to modify or amend the terms of the Commitment Letters. To Buyer’s Knowledge, no event has occurred of which Parent is aware thatwhich, with or without notice, lapse of time or both, would constitute a default or breach or default on the part of Parent or any other party thereto under any term or condition of the Equity Commitment Letter that Letters, or would reasonably be expected to materially impair or adversely affect the Equity Financing and the timely receipt of the proceeds thereof. As of the date of this Agreement, assuming the satisfaction of the conditions set forth result in Section 6.1 and Section 6.2, Parent has no reason to believe that it or any other a party to the Equity Commitment Letter will be thereto being unable to satisfy on a timely basis any applicable Financing Condition term or their respective obligations under condition of closing to be satisfied pursuant to the Equity Commitment LetterLetters. Except as set forth in the Equity Commitment Letter, there are no conditions precedent Buyer or an Affiliate thereof on its behalf has fully paid any and all commitment or other contingencies related fees required by the Debt Commitment Letters to the funding of the full amount of the Equity Financing other than the applicable Financing Conditions. As of be paid by the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that (i) any of the Financing Conditions will not be satisfied or (ii) the Equity Financing will not be made available in full to Parent on the Closing Date. Parent and Xxxxxx Sub expressly agree and acknowledge that their obligations hereunder, including Xxxxxx’s and Xxxxxx Sub’s obligations to consummate the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of any financinghereof.

Financial Capacity. Parent Buyer acknowledges and agrees that its obligations under this Agreement, including its obligation to consummate the transactions contemplated hereby, are not contingent upon its ability to obtain any financing. Buyer has delivered to the Company Sellers a true true, correct, and complete copy of the executed Equity Commitment LetterLetter to provide to Buyer, which subject to the terms and conditions therein, cash in the aggregate amount set forth therein to satisfy the payment of the Purchase Price and Buyer’s other obligations hereunder (the “Financing”). The Equity Commitment Letter has not been amended or modified prior to the execution of this Agreement. The aggregate proceeds of the Equity Financing, along with the Company Cash on Hand, will be sufficient to fund (i) the payment of the aggregate Transaction Consideration for the acquisition or conversion of all shares of Company Common Stock (other than the Cancelled Shares) pursuant to the Merger (assuming no Dissenting Shares) and all consideration payable pursuant to this Agreement in respect of Company Stock Awardsdate hereof, and (ii) the payment of all fees and expenses required to be paid by Parent no such amendment or Merger Sub at Closing in connection with the Transactions (such amount, the “Required Funding Amount”). As modification is contemplated as of the date hereof, and the commitment respective commitments contained in the Equity Commitment Letter has have not been withdrawn, modified withdrawn or rescinded in any respectrespect as of the date hereof (and, to the knowledge of Buyer, no such withdrawal or rescission is contemplated as of the date hereof). The Equity Commitment Letter is in full force and effect against Parent and, to the Knowledge of Parent, each other party thereto and represents valid, binding and enforceable obligations of Parent and, to the Knowledge of Parent, each other party thereto (not subject to the Bankruptcy and Equity Exception). As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, no event has occurred of which Parent is aware that, with or without notice, lapse of time or both, would constitute a breach or default on the part of Parent or any other party thereto under any term of the Equity Commitment Letter that would reasonably be expected to materially impair or adversely affect the Equity Financing and the timely receipt of the proceeds thereof. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that it or any other party to the Equity Commitment Letter will be unable to satisfy on a timely basis any applicable Financing Condition or their respective obligations under the Equity Commitment Letter. Except as set forth in the Equity Commitment Letter, there are no conditions precedent or other contingencies related relating to the funding of the full amount of the Equity Financing other than as set forth in the applicable Financing Conditions. As Equity Commitment Letter delivered to Sellers, and are binding and in full force and effect and are the legal, valid (assuming due authorization, execution and delivery by the other parties thereto), binding and enforceable obligations of Buyer and, to the knowledge of Buyer, each of the date other parties thereto, as the case may be, in each case except as such enforceability may be limited by applicable bankruptcy, insolvency and other similar Laws affecting the enforceability of this Agreementcreditors’ rights generally, assuming general equitable principles and the discretion of courts in granting equitable remedies. Assuming the satisfaction of the conditions set forth in Section 6.1 Article VIII and Section 6.2Article IX, Parent has no reason the aggregate net proceeds contemplated by the Equity Commitment Letter, together with available funds of Buyer, will, in the aggregate, be sufficient for Buyer to believe that (i) any complete the transactions contemplated by this Agreement, and to satisfy all of the Financing Conditions will not be satisfied obligations of Buyer under this Agreement, including (A) paying the Purchase Price at Closing, and (B) paying all related fees and expenses of Buyer hereunder. Assuming the satisfaction of the conditions set forth in Article VIII and Article IX, to the knowledge of Buyer, there exists no fact or occurrence existing on the date hereof that could (I) constitute a default or breach, of a failure of any condition, under the Equity Commitment Letter or (iiII) otherwise cause the Equity Commitment Letter to be ineffective or the Financing will not to be made available in full to Parent unavailable on the Closing Date. Parent and Xxxxxx Sub expressly agree and acknowledge that their obligations hereunder, including Xxxxxx’s and Xxxxxx Sub’s obligations to consummate the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of any financing.

Financial Capacity. Parent Holdings has delivered to the Company provided Seller with a true and complete copy of (a) the executed Equity debt commitment letter, dated as of the date of this Agreement (such letter, together with all annexes and exhibits attached thereto, the “Debt Commitment Letter”) from JPMorgan Chase Bank, N.A. (the “Commitment Party”) pursuant to which the Commitment Party has agreed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein for the purposes of financing the Contemplated Transactions, related fees and expenses to be incurred by Holdings, Newco or Buyer in connection therewith and for the other purposes set forth therein (the “Debt Financing”) and (b) the associated fee letters (subject to redaction of fee amounts and certain other terms that would not reduce the aggregate amount or affect the conditionality of the Debt Financing) (the “Fee Letters”). None of the Debt Commitment Letter have been amended or modified prior to the execution of this Agreement. The aggregate proceeds of the Equity Financing, along with the Company Cash on Hand, will be sufficient to fund (i) the payment of the aggregate Transaction Consideration for the acquisition or conversion of all shares of Company Common Stock (other than the Cancelled Shares) pursuant to the Merger (assuming no Dissenting Shares) and all consideration payable pursuant to this Agreement in respect of Company Stock Awards, and (ii) the payment of all fees and expenses required to be paid by Parent or Merger Sub at Closing in connection with the Transactions (such amount, the “Required Funding Amount”). As of the date hereof, the commitment contained in the Equity Commitment Letter has not been withdrawn, modified or rescinded in any respect. The Equity Commitment Letter is in full force and effect against Parent and, to the Knowledge of Parent, each other party thereto and represents valid, binding and enforceable obligations of Parent and, to the Knowledge of Parent, each other party thereto (subject to the Bankruptcy and Equity Exception). As of the date of this Agreement, assuming (i) each Debt Commitment Letter is in full force and effect, constitutes the satisfaction valid and binding obligation of Buyer and, to the Knowledge of Buyer, each of the other parties thereto, in each case in accordance with their terms (except as limited by (x) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar Laws relating to creditors’ rights generally and (y) general principles of equity), (ii) the respective commitments contained therein have not been withdrawn or rescinded in any respect, and (iii) there are no conditions set forth in Section 6.1 and Section 6.2, no event has occurred of which Parent is aware that, with precedent or without notice, lapse of time or both, would constitute a breach or default on other contingencies relating to the part of Parent or any other party thereto under any term funding of the Equity Commitment Letter that would reasonably be expected to materially impair or adversely affect the Equity Financing and the timely receipt full amount of the proceeds thereofcovered thereby, except as stated in the Debt Commitment Letter and the Fee Letters. Other than the Debt Commitment Letter and the Fee Letters, there are no side letters or other contracts or arrangements setting forth conditions precedent or other contingencies related to the funding of the full amount of the Debt Financing to which Buyer or any of its Affiliates are a party. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that it or any other party to the Equity Commitment Letter will be unable to satisfy on a timely basis any applicable Financing Condition or their respective obligations under the Equity Commitment Letter. Except as set forth in the Equity Commitment Letter, there are no conditions precedent or other contingencies related to the funding of the full amount of the Equity Debt Financing other than as expressly set forth in the applicable Financing ConditionsDebt Commitment Letter and the Fee Letters. Assuming (1) the satisfaction of the conditions in Section 7.1 hereof and Section 7.3 hereof, and (2) completion of the Marketing Period, Buyer will have at the Closing sufficient funds to consummate the Contemplated Transactions, to perform its obligations hereunder (including all payments to be made by it in connection herewith) and to pay all expenses of Buyer related to this Agreement and the Contemplated Transactions. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent Buyer has no reason to believe that (i) it will be unable to satisfy any of condition to the Debt Financing Conditions will not be satisfied set forth in the Debt Commitment Letter on a timely basis or (ii) that the Equity Debt Financing will not be made available in full to Parent the Buyer at the Closing, including any reason to believe on the Closing Date. Parent date of this Agreement that the Commitment Party will not perform its funding obligations under the Debt Commitment Letter in accordance with their respective terms and Xxxxxx Sub expressly agree and acknowledge that their obligations hereunder, including Xxxxxx’s and Xxxxxx Sub’s obligations to consummate the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of any financingconditions.

Financial Capacity. Parent Buyer has delivered to the Company a provided Seller with true and complete copy copies of (i) the equity commitment letter (the “Equity Commitment Letter”) from Welsh Xxxxxx Xxxxxxxx & Xxxxx XII, L.P. and Select Medical Corporation (the “Equity Investors”) to provide to Buyer (directly or indirectly), subject to the terms and conditions thereof, equity financing in the aggregate amount set forth therein (the “Equity Financing”) and (ii) the debt commitment letters, dated as of the executed date hereof (such letters, together with all annexes and exhibits attached thereto, the “Debt Commitment Letters” and together with the Equity Commitment Letter, the “Financing Letters”) from JPMorgan Chase Bank, N.A. and X.X. Xxxxxx Securities LLC (collectively, the “Commitment Parties”) pursuant to which has not the Commitment Parties have agreed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein for the purposes of financing the Contemplated Transactions, related fees and expenses to be incurred by Buyer in connection therewith and for the other purposes set forth therein (the “Debt Financing” and together with the Equity Financing the “Financing”). None of the Equity Commitment Letter or the Debt Commitment Letters have been amended or modified prior to the execution date hereof, and, as of the date of this Agreement. The aggregate proceeds of the Equity Financing, along with the Company Cash on Hand, will be sufficient to fund (i) the payment of the aggregate Transaction Consideration for the acquisition or conversion of all shares of Company Common Stock (other than the Cancelled Shares) pursuant amendments or modifications with respect to the Merger (assuming Debt Commitment Letters solely to add lenders, lead arrangers, bookrunners, syndication agents and similar entities, no Dissenting Shares) and all consideration payable pursuant to this Agreement in respect of Company Stock Awards, and (ii) the payment of all fees and expenses required to be paid by Parent such amendment or Merger Sub at Closing in connection with the Transactions (such amount, the “Required Funding Amount”). As of the date hereof, the commitment contained in the Equity Commitment Letter has not been withdrawn, modified or rescinded in any respect. The Equity Commitment Letter modification is in full force and effect against Parent and, to the Knowledge of Parent, each other party thereto and represents valid, binding and enforceable obligations of Parent and, to the Knowledge of Parent, each other party thereto (subject to the Bankruptcy and Equity Exception)contemplated. As of the date of this Agreement, assuming each such Financing Letter is in full force and effect, constitutes the satisfaction legal, valid and binding obligation of Buyer and, to the Knowledge of Buyer, each of the conditions set forth other parties thereto, in Section 6.1 each case in accordance with their terms and Section 6.2except as limited by (x) bankruptcy, no event has occurred insolvency, reorganization, moratorium, fraudulent conveyance or other similar Laws relating to creditors’ rights generally and (y) general principles of which Parent equity, whether such enforceability is aware thatconsidered in a proceeding in equity or at law, with or without notice, lapse of time or both, would constitute a breach or default on the part of Parent or any other party thereto under any term of the Equity Commitment Letter that would reasonably be expected to materially impair or adversely affect the Equity Financing and the timely receipt of the proceeds thereof. As of the date of this Agreementrespective commitments contained therein have not been withdrawn or rescinded in any respect, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that it or any other party to the Equity Commitment Letter will be unable to satisfy on a timely basis any applicable Financing Condition or their respective obligations under the Equity Commitment Letter. Except as set forth in the Equity Commitment Letter, there are no conditions precedent or other contingencies related relating to the funding of the full amount of the Equity proceeds covered thereby, except as stated therein. There are no side letters or other contracts or arrangements (except for customary fee letters, true and complete copies of which have been provided to Seller, with only fee amounts and certain other terms that would not reduce the aggregate amount or affect the conditionality of the Debt Financing redacted, and other than customary engagement letters and fee credit letters, none of which affect the applicable Financing Conditions. As amount or conditionality of the date Debt Financing) related to the funding of the financing contemplated pursuant to the Debt Commitment Letters other than as expressly set forth in the Debt Commitment Letters furnished pursuant to this Agreement, assuming Section 5.6. Assuming (1) the satisfaction of the conditions set forth in Section 6.1 7.1 hereof and Section 6.27.3 hereof, Parent and (2) completion of the Marketing Period, Buyer will have at the Closing sufficient funds to consummate the Contemplated Transactions, to perform its obligations hereunder (including all payments to be made by it in connection herewith) and to pay all expenses of Buyer related to this Agreement and the Contemplated Transactions. Buyer has no reason to believe that (i) any of term or condition to the Financing Conditions set forth in the Financing Letters will not be fully satisfied on a timely basis or (ii) that the Equity Financing will not be made available in full to Parent the Buyer at the Closing, including any reason to believe on the Closing Datedate of this Agreement that any of the Commitment Parties will not perform their respective funding obligations under the Financing Letters in accordance with their respective terms and conditions. Parent and Xxxxxx Sub expressly agree and acknowledge that their obligations hereunderFor the avoidance of doubt, including Xxxxxx’s and Xxxxxx Sub’s obligations to consummate in no event shall the Merger, are not subject to, receipt or conditioned on, Parent’s or Merger Sub’s receipt availability of any financingfunds or financing by or to Buyer (including the Debt Financing) be a condition to any of the obligations of Buyer hereunder.

Financial Capacity. Parent Assuming (a) that the parties to the Debt Commitment Letter (other than Buyer) perform their obligations in accordance with the terms thereof and (b) satisfaction of the conditions precedent to Buyer’s obligations hereunder, Buyer shall have at the Closing sufficient cash, available lines of credit or other sources of immediately available funds to make payment of all amounts to be paid by it hereunder on and after the Closing Date. Buyer has delivered provided to the Company a true and complete copy of the fully executed Equity commitment letter, dated as of September 18, 2017, between the Financing Sources party thereto and Buyer (and including any lenders who become party thereto by joinder in accordance with the terms of such debt commitment letter, together with all exhibits, schedules, annexes and, to the extent otherwise in accordance with the terms hereof, supplements and amendments thereto, the “Debt Commitment Letter”), pursuant to which the Financing Sources party thereto agreed to lend the amounts set forth therein on the terms and subject to the conditions set forth therein (together with any Alternate Financing) for the purpose of funding the transactions contemplated by this Agreement. The Debt Commitment Letter has not been amended or modified prior to in a manner that could affect the execution of this Agreement. The aggregate proceeds satisfaction of the Equity Financing, along with the Company Cash on Hand, will be sufficient to fund (i) the payment of the aggregate Transaction Consideration for the acquisition or conversion of all shares of Company Common Stock (other than the Cancelled Shares) pursuant to the Merger (assuming no Dissenting Shares) and all consideration payable pursuant to this Agreement conditions set forth in respect of Company Stock AwardsSection 8.4 hereof, and (ii) the payment of all fees and expenses required to be paid by Parent or Merger Sub at Closing in connection with the Transactions (such amount, the “Required Funding Amount”). As as of the date hereof, of this Agreement the commitment commitments contained in the Equity Debt Commitment Letter has have not been withdrawn, modified withdrawn or rescinded in any respect. The Equity Commitment Letter is in full force and effect against Parent and, to the Knowledge of Parent, each other party thereto and represents valid, binding and enforceable obligations of Parent and, to the Knowledge of Parent, each other party thereto (subject to the Bankruptcy and Equity Exception). As of the date of this Agreement, assuming the satisfaction Debt Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of Buyer and, to Buyer’s knowledge, each of the conditions set forth in Section 6.1 other parties thereto, except as may be limited by bankruptcy, insolvency, reorganization and Section 6.2, no event has occurred of which Parent is aware that, with or without notice, lapse of time or both, would constitute a breach or default on the part of Parent or any other party thereto under any term Laws of the Equity Commitment Letter that would reasonably be expected general applicability relating to materially impair or adversely affect the Equity Financing affecting creditors’ rights (including fraudulent conveyance laws) and the timely receipt of the proceeds thereofby general equity principles, as applicable. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that it or any other party to the Equity Commitment Letter will be unable to satisfy on a timely basis any applicable Financing Condition or their respective obligations under the Equity Commitment Letter. Except as set forth in the Equity Commitment Letter, there There are no conditions precedent or other contingencies related to the funding of the full amount of the Equity Financing Financing, other than as expressly set forth in the applicable Financing Conditions. As Debt Commitment Letter (including satisfaction of the date of this Agreement, assuming Marketing Period and changes effected pursuant to the “market flex” provisions in the associated fee letter). Assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2precedent to Buyer’s obligations hereunder, Parent Buyer has no reason to believe that (i) it will not be able to satisfy any term or condition of closing of the Financing Conditions will not that is required to be satisfied as a condition to the Financing, or (ii) that the Equity Financing will not be made available in full to Parent Buyer on the Closing Date. Parent and Xxxxxx Sub expressly agree and acknowledge that their obligations hereunder, including Xxxxxx’s and Xxxxxx Sub’s obligations to consummate the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of any financing.

Financial Capacity. Parent has delivered to the Company a true Attached hereto as Exhibit A are true, correct and complete copy copies of the executed Equity commitment letters and the term sheets with respect thereto (collectively, the “Original Debt Commitment LetterLetters”) from each of (a) Bank of America, which has not been amended or modified prior N.A., HSBC Bank USA, National Association and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and (b) Prudential Capital Partners IV, L.P. and certain of its affiliated funds (collectively, the “Commitment Lenders”) to provide to the execution Purchaser with an aggregate amount equal to at least $90,000,000 in financing (the “Financing”) as in effect on the date of this Agreement. The aggregate proceeds Each of the Equity FinancingDebt Commitment Letters has been validly authorized, along with the Company Cash on Hand, will be sufficient to fund (i) the payment executed and delivered by each of the aggregate Transaction Consideration for the acquisition or conversion of all shares of Company Common Stock (other than the Cancelled Shares) pursuant Purchaser and, to the Merger (assuming no Dissenting Shares) and all consideration payable pursuant to this Agreement in respect of Company Stock Awards, and (ii) the payment of all fees and expenses required to be paid by Parent or Merger Sub at Closing in connection with the Transactions (such amountPurchaser’s Knowledge, the “Required Funding Amount”). As of the date hereofCommitment Lenders, the commitment contained in the Equity Commitment Letter has not been withdrawn, modified or rescinded in any respect. The Equity Commitment Letter is in full force and effect against Parent andand is a legal, to the Knowledge of Parent, each other party thereto valid and represents valid, binding and enforceable obligations of Parent and, to the Knowledge of Parent, each other party thereto (subject to the Bankruptcy and Equity Exception). As obligation of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, no event has occurred of which Parent is aware that, with or without notice, lapse of time or both, would constitute a breach or default on the part of Parent or any other party thereto under any term of the Equity Commitment Letter that would reasonably be expected to materially impair or adversely affect the Equity Financing Purchaser and the timely receipt of the proceeds thereofother parties thereto. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that it or any other party to the Equity Commitment Letter will be unable to satisfy on a timely basis any applicable Financing Condition or their respective obligations under the Equity Commitment Letter. Except as set forth in the Equity Commitment Letter, there There are no conditions precedent or other contingencies related to the funding of the full amount of the Equity Financing other than the applicable Financing Conditions. As of the date of this Agreement, assuming the satisfaction of the conditions as specifically set forth in Section 6.1 the Debt Commitment Letters. No event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach on the part of the Purchaser under any term or condition of any Debt Commitment Letter, and Section 6.2, Parent the Purchaser has no reason to believe that (i) any of the conditions to the Financing Conditions will not be satisfied on a timely basis or (ii) that the Equity Financing will not be made available in full to Parent on the terms set forth in the Debt Commitment Letters. The Purchaser has fully paid any and all commitment fees or other fees required by the Debt Commitment Letters to be paid by the Purchaser on or prior to the date of this Agreement and shall in the future pay any such fees as they become due. At the Closing, the Purchaser will have sufficient immediately available funds in cash to pay the Closing Date. Parent Date Payment and Xxxxxx Sub expressly agree to pay any other amounts payable pursuant to this Agreement and acknowledge that their obligations hereunderto effect the transactions contemplated hereby, including Xxxxxx’s and Xxxxxx Sub’s obligations to consummate absent the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt existence of any financinga Financing Failure at the Closing.

Financial Capacity. Parent Buyer has received and delivered to the Company Parent a true true, correct and complete copy of the debt commitment letter addressed to Buyer dated as of the date of this Agreement from Deutsche Bank AG Cayman Islands Branch and Deutsche Bank Securities Inc. (as the same may be amended or replaced and including any executed Equity commitment letter (or similar agreement) for any alternative financing, the “Debt Commitment Letter”) pursuant to which, which has not been amended or modified prior and subject to the execution of this Agreementterms and conditions thereof, the lenders party thereto have committed to provide or cause to be provided debt financing as described therein (such financing, and/or the debt securities contemplated to be issued in an offering or exchange in lieu thereof, the “Debt Financing”). The aggregate proceeds Debt Commitment Letter is a legal, valid and binding obligation of the Equity Financing, along parties thereto in accordance with the Company Cash on Handterms and conditions thereof, will be sufficient subject to fund (i) the payment bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar Laws of the aggregate Transaction Consideration for the acquisition general application affecting or conversion of all shares of Company Common Stock (other than the Cancelled Shares) pursuant relating to the Merger (assuming no Dissenting Shares) and all consideration payable pursuant to this Agreement in respect enforcement of Company Stock Awards, creditors’ rights generally and (ii) the payment general principles of all fees and expenses required to be paid by Parent equity, whether considered in a proceeding at law or Merger Sub at Closing in connection with the Transactions (such amount, the “Required Funding Amount”)equity. As of the date hereof, the commitment contained in the Equity Commitment Letter has not been withdrawn, modified or rescinded in any respect. The Equity Debt Commitment Letter is in full force and effect against Parent andand has not been amended or modified or withdrawn, terminated or rescinded in any respect and there is no default or breach existing (or which with notice or lapse of time or otherwise may exist) thereunder. The aggregate net proceeds contemplated by the Debt Commitment Letter, together with other immediately available cash resources of Buyer, will in the aggregate be sufficient for Buyer to satisfy the obligation to pay the Aggregate Purchase Price and all other amounts that Buyer is required to pay pursuant to this Agreement and all expenses incurred by Buyer in connection with the transactions contemplated by this Agreement. Except for a customary fee letter, a copy of which has been provided to the Knowledge Parent with only the amount of Parentfees, each “pricing flex” and other party thereto economic terms therein redacted, and represents valida customary fee credit letter and a customary engagement letter, binding and enforceable (i) the obligations of Parent andthe Debt Financing Sources to fund the commitments under the Debt Commitment Letter are not subject to any conditions precedent or other contingencies except as set forth in the Debt Commitment Letter, and (ii) there are no side agreements or other arrangements, commitments or understanding except as explicitly set forth in the Debt Commitment Letter, and there are no side agreements, commitments or other arrangements or understandings with respect to the Knowledge Debt Financing. Buyer and its Affiliates have no knowledge of Parent, each other party thereto (subject to the Bankruptcy and Equity Exception). As of the date of this Agreementany facts or circumstances that, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, no event has occurred of which Parent is aware that, with or without notice, lapse of time or bothArticle 6, would constitute a breach or default on be reasonably likely to result in (a) the part of Parent or any other party thereto under any term of conditions precedent set forth in the Equity Debt Commitment Letter not being satisfied or (b) the funding contemplated by the Debt Commitment Letter not being made available to Buyer in order to consummate the transactions contemplated by this Agreement at the Closing. Buyer has paid any and all commitment and other fees that would reasonably be expected are due and payable on or prior to materially impair or adversely affect the Equity Financing and the timely receipt of the proceeds thereof. As of the date of this Agreement, assuming Agreement in connection with the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that it or any other party to the Equity Commitment Letter will be unable to satisfy on a timely basis any applicable Financing Condition or their respective obligations under the Equity Debt Commitment Letter. Except as set forth in the Equity Commitment Letter, there are no conditions precedent or other contingencies related to the funding of the full amount of the Equity Financing other than the applicable Financing Conditions. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that (i) any of the Financing Conditions will not be satisfied or (ii) the Equity Financing will not be made available in full to Parent on the Closing Date. Parent and Xxxxxx Sub expressly agree and acknowledge that their obligations hereunder, including Xxxxxx’s and Xxxxxx Sub’s obligations to consummate the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of any financing.

Financial Capacity. Parent (a) Buyer has delivered to the Company Seller a true true, accurate and complete copy of the executed Equity Commitment Letter, which has not been amended or modified prior to the execution of this Agreement. The aggregate proceeds of the Equity Financing, along with the Company Cash on Hand, will be sufficient to fund (i) the payment executed commitment letter, dated as of the aggregate Transaction Consideration Agreement Date, by and among Buyer and lenders party thereto (including the assignees thereof, the “Lenders”), including all exhibits, schedules, annexes and amendments thereto (the “Debt Financing Commitment”), pursuant to which, and subject to the terms and conditions of which, the Lenders have committed, on a several but not joint basis, to lend the amounts set forth therein to Buyer for the acquisition or conversion purpose of all shares of Company Common Stock (other than funding the Cancelled Shares) pursuant to the Merger (assuming no Dissenting Shares) and all consideration payable pursuant to transactions contemplated by this Agreement (such committed financing, together with, unless the context otherwise requires, any debt securities issued in respect lieu thereof, the “Debt Financing”), (ii) an executed commitment letter, dated as of Company Stock Awardsthe Agreement Date, by and between Buyer and Carlyle-Havasu Cayman Holdings, L.P., a Cayman Islands exempted limited partnership (“C-H Holdings”), including all exhibits, schedules, annexes and amendments thereto (the “C-H Holdings Equity Financing Commitment”), (iii) an executed commitment letter, dated as of the Agreement Date, by and between Buyer and GIC, including all exhibits, schedules, annexes and amendments thereto (the “GIC Equity Financing Commitment” and, together with the C-H Holdings Equity Financing Commitment, the “Buyer Equity Commitments”), and (iiiv) an executed commitment letter, dated as of the payment of Agreement Date, by and between C-H Holdings and Sponsor, including all fees exhibits, schedules, annexes and expenses required to be paid by Parent or Merger Sub at Closing in connection amendments thereto (the “Sponsor Equity Financing Commitment” and, together with the Transactions (such amountBuyer Equity Commitments, the “Required Funding AmountEquity Financing Commitments”, and the Equity Financing Commitments and the Debt Financing Commitment, collectively, the “Financing Commitments”). As of the date hereof, the commitment contained in the Equity Commitment Letter has not been withdrawn, modified or rescinded in any respect. The Equity Commitment Letter is in full force and effect against Parent and, Pursuant to the Knowledge of ParentSponsor Equity Financing Commitment, each other party thereto and represents valid, binding and enforceable obligations of Parent and, to the Knowledge of Parent, each other party thereto (subject to the Bankruptcy terms and conditions thereof, the Sponsor has committed to provide the amounts set forth therein to C-H Holdings for the purpose of funding the amounts contemplated by the C-H Holdings Equity ExceptionFinancing Commitment (the “Sponsor Equity Financing”). As of C-H Holdings and GIC have each committed, on a several but not joint basis, to provide the date of this Agreement, assuming the satisfaction of the conditions amounts set forth in Section 6.1 its respective Buyer Equity Commitment, subject to the terms and Section 6.2conditions thereof, no event has occurred to Buyer for the purpose of which Parent is aware thatfunding the transactions contemplated by this Agreement (the “Buyer Equity Financing” and, together with or without noticethe Sponsor Equity Financing, lapse of time or boththe “Equity Financing and, would constitute a breach or default on together with both the part of Parent or any other party thereto under any term of the Equity Commitment Letter that would reasonably be expected to materially impair or adversely affect the Buyer Equity Financing and the timely receipt of Debt Financing, the proceeds thereof. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that it or any other party to the Equity Commitment Letter will be unable to satisfy on a timely basis any applicable Financing Condition or their respective obligations under the Equity Commitment Letter. Except as set forth in the Equity Commitment Letter, there are no conditions precedent or other contingencies related to the funding of the full amount of the Equity Financing other than the applicable Financing Conditions. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that (i) any of the Financing Conditions will not be satisfied or (ii) the Equity Financing will not be made available in full to Parent on the Closing Date. Parent and Xxxxxx Sub expressly agree and acknowledge that their obligations hereunder, including Xxxxxx’s and Xxxxxx Sub’s obligations to consummate the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of any financing“Financing”).

Financial Capacity. Parent has delivered Assuming (a) that the parties to the Company a true and complete copy each of the executed Debt Commitment Letter and the Equity Commitment LetterArrangements (in each case other than Buyer and, which has not been amended or modified prior to in the execution of this Agreement. The aggregate proceeds case of the Equity FinancingCommitment Arrangements, along Parent Guarantor) perform their respective obligations in accordance with the Company Cash terms thereof and (b) satisfaction of the conditions precedent to Buyer’s obligations hereunder, Buyer shall have at the Closing sufficient cash, available lines of credit and other sources of immediately available funds to make payment of all amounts to be paid by it in order to consummate all of the transactions contemplated hereunder on Handthe Closing Date, will be sufficient to fund including (i) the payment of the aggregate Transaction Consideration for the acquisition or conversion of all shares of Company Common Stock (other than the Cancelled Shares) amounts payable pursuant to Section 1.4, including amounts owing pursuant to the Merger (assuming no Dissenting Shares) outstanding amount of Repaid Debt and all consideration payable pursuant to this Agreement in respect of the Company Stock AwardsTransaction Expenses, and (ii) all of the payment out-of-pocket costs of all Buyer arising from the consummation of the transactions and any fees and expenses required to be paid by Parent or Merger Sub at Closing incurred in connection with the Transactions Financing (such amountthe foregoing amounts, collectively, the “Required Funding Closing Amount”). Buyer has provided to the Company a true, complete and accurate copy of the fully executed (i) debt commitment letter, together with the related fee letter (subject to customary redactions of the fee amounts and other economic terms therein (provided that such redactions do not include, for the avoidance of doubt, any terms that would adversely affect the conditionality or availability of the Debt Financing, and none of the redacted provisions would allow the Debt Financing Sources to reduce the amount of funding to be provided under the Debt Commitment Letter (or the definitive documentation entered into pursuant thereto) or change the conditions on which such funding is available if in any such case such change would reasonably be expected to prevent, materially delay or impede the consummation of the Debt Financing thereunder)), dated as of the date hereof, between the lenders party thereto (including any lender who becomes party thereto by joinder in accordance with the terms of such debt commitment letter, collectively, the “Debt Financing Sources”) and Buyer (such debt commitment letter and fee letter, together with all exhibits, schedules, annexes and term sheets attached thereto, and, to the extent otherwise in accordance with the terms hereof, supplements and amendments thereto, the “Debt Commitment Letter”), pursuant to which the Debt Financing Sources party thereto have committed to lend the amounts set forth therein on the terms and subject to the conditions set forth therein for the purpose of funding the transactions contemplated by this Agreement (the “Debt Financing”) and (ii) equity commitment and investment agreement, dated as of the date hereof, between Green Equity Investors VII, L.P., a Delaware limited partnership and Green Equity Investors Side VII, L.P., a Delaware limited partnership (the “Equity Financing Sources”), and Parent Guarantor (together with all exhibits, schedules, annexes and, to the extent otherwise in accordance with the terms hereof, supplements and amendments thereto, the “Equity Commitment Arrangements” and, together with the Debt Commitment Letter, the “Commitment Arrangements”), pursuant to which the Equity Financing Sources agreed to invest the amounts set forth therein on the terms and subject to the conditions set forth therein for the purpose of funding the transactions contemplated by this Agreement (the “Equity Financing” and, together with the Debt Financing, the “Financing”). The Commitment Arrangements have not been amended, supplemented or modified in any manner in contravention of this Agreement, and as of the date hereof the commitments contained in the Commitment Arrangements have not been withdrawn or rescinded in any respect. As of the date hereof, the commitment contained in the Equity Commitment Letter has not been withdrawn, modified or rescinded in any respect. The Equity Commitment Letter is Arrangements are in full force and effect against and each constitutes the legal, valid and binding obligation of Buyer and, in the case of the Equity Commitment Arrangements, Parent Guarantor and, to the Knowledge of ParentBuyer’s knowledge, each of the other party thereto and represents validparties thereto, binding and enforceable obligations of Parent andagainst each such Person in accordance with its terms, except to the Knowledge extent that enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other similar Laws affecting the enforcement of Parentcreditors’ rights generally and by general principles of equity. Other than the Commitment Arrangements, each there are no other party thereto (subject agreements, side letters or arrangements relating to the Bankruptcy and Equity Exception). As amount, conditionality, availability or termination of the Financing. There is no condition precedent or other contingency related to the funding of the full amount of the Financing, other than as expressly set forth in the Commitment Arrangements. Buyer has fully paid any and all commitment fees or other fees required by the Debt Commitment Letter to be paid by it on or prior to the date of this Agreement, assuming hereof. Assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2precedent to Buyer’s obligations hereunder, no event has occurred Buyer is not aware of which Parent is aware any fact or occurrence that, with or without notice, lapse of time or both, would constitute a default or breach or default on the part of Parent or any other party thereto under any term of the Equity Commitment Letter that would reasonably be expected to materially impair or adversely affect the Equity Financing Arrangement and the timely receipt of the proceeds thereof. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that it will not be able to satisfy any term or any other party condition that is required to be satisfied as a condition to the Equity Commitment Letter will be unable to satisfy on a timely basis any applicable Financing Condition availability or their respective obligations under the Equity Commitment Letter. Except as set forth in the Equity Commitment Letter, there are no conditions precedent or other contingencies related to the funding of the full amount of the Equity Financing other than Financing, or that the applicable Financing Conditions. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that (i) any of the Financing Conditions will not be satisfied or (ii) the Equity Financing will not be made available in full to Parent Buyer on the Closing Date. Parent Each of Buyer and Xxxxxx Merger Sub expressly agree and acknowledge affirms that their obligations hereunder, including Xxxxxx’s and Xxxxxx Sub’s obligations it is not a condition to consummate the Merger, are not subject to, Closing that Buyer obtain the Financing or conditioned on, Parent’s or Merger Sub’s receipt of any financingother financing for the transactions contemplated hereby.

Financial Capacity. Parent has delivered to the Company a true and complete copy copies of (a) the executed equity commitment letter dated as of the executed date hereof (the “Equity Commitment Letter”) from the Guarantors to provide to Parent on the Closing Date the Equity Financing in cash in an aggregate amount of at least $115,000,000, which has not Equity Commitment Letter provides that the Company is an express third party beneficiary thereto and (b) the Debt Commitment Letter executed by the Debt Financing Sources party thereto on the date hereof and countersigned by Merger Sub 2. None of the Commitment Letters have been amended or modified prior to the execution date of this Agreement. The aggregate proceeds of the Debt Financing and the Equity Financing, along with the Company Cash on Hand, Financing will be sufficient to fund consummate the Transactions, including (i) the payment of the aggregate Transaction Merger Consideration for the acquisition or conversion of all shares and Option Consideration to which holders of Company Common Stock (other than Stock, Company Options and Company RS Awards will be entitled at the Cancelled Shares) pursuant to the Merger (assuming no Dissenting Shares) and all consideration payable Effective Time pursuant to this Agreement in respect Agreement, (ii) the repayment of Company Stock Awards, the Payoff Indebtedness and (iiiii) the payment of all fees and expenses required to be paid by Parent or either Merger Sub at the Closing in connection with the Transactions (such amount, the “Required Funding Amount”)Transactions. As of the date hereof, the commitment commitments contained in the Equity Commitment Letter has Letters have not been withdrawn, modified withdrawn or rescinded in any respect. The Equity As of the date hereof, the Commitment Letter is Letters are in full force and effect against Parent and, to the Knowledge of Parenteach Merger Sub, each other party thereto and represents represent valid, binding and enforceable obligations of Parent and(in the case of the Equity Commitment Letter) and the Debt Financing Sources (in the case of the Debt Commitment Letter) (in each case, to the Knowledge of Parent, each other party thereto (subject to the Bankruptcy Enforceability Exceptions) to provide the financing contemplated thereby subject only to the satisfaction or waiver of the applicable Financing Conditions. Parent has fully paid (or caused to be paid) any and Equity Exception)all commitment fees and other amounts that are due and payable on or prior to the date of this Agreement in connection with the Financing. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, no event has occurred of which Parent is aware thatwhich, with or without notice, lapse of time or both, would constitute a material breach or default on the part of Parent (in the case of the Equity Commitment Letter) or Merger Sub 2 (in the case of the Debt Commitment Letter), in each case, or any other party thereto under any term of the Equity Commitment Letter that Letters which would reasonably be expected to materially impair or adversely affect the Equity Financing and the timely receipt of the proceeds thereofFinancing. As of the date hereof, each of this Agreement, assuming Parent (in the satisfaction case of the conditions set forth Equity Commitment Letter) and Merger Sub 2 (in Section 6.1 and Section 6.2, Parent the case of the Debt Commitment Letter) has no reason to believe that it or any other party to the Equity Commitment Letter thereto will be unable to satisfy on a timely basis any applicable Financing Condition or their respective obligations under term of any of the Equity Commitment LetterLetters. Except as set forth in the Equity Commitment Letter and the Debt Commitment Letter, there are no conditions precedent or other contingencies related to the funding of the full amount of the Equity Financing other than the applicable Financing Conditions. The only conditions precedent or other contingencies related to the funding of the Debt Financing on the Closing Date that will be required to be satisfied on the Closing Date in order to consummate the Debt Financing contemplated by the Debt Commitment Letter shall be the Financing Conditions contained in the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that (iA) any of the Financing Conditions will not be satisfied or (iiB) the Equity Financing will not be made available in full to Parent (in the case of the Equity Commitment Letter) and Merger Sub 2 (in the case of the Debt Commitment Letter) on the Closing Date. Parent and Xxxxxx each Merger Sub expressly agree and acknowledge that their obligations hereunder, including XxxxxxParent’s and Xxxxxx each Merger Sub’s obligations to consummate the MergerMergers, are not subject to, or conditioned on, Parent’s or either Merger Sub’s receipt of any financing. Notwithstanding anything to the contrary contained herein, the Company agrees that a breach of the representations and warranties in this ‎Section 5.08 shall not result in the failure of the conditions to the Closing set forth in ‎Section 7.03(a) if, notwithstanding such breach and subject to the satisfaction of the other conditions to Closing set forth in ‎Article VII, Parent and each Merger Sub are willing and able to consummate the Closing on the date the Closing is required to occur hereunder.

Financial Capacity. Parent has delivered to the Company a true true, correct and complete copy of the executed Equity Commitment LetterLetter dated the date hereof from Guarantor, pursuant to which Guarantor has not been amended or modified prior committed to invest in Parent, subject to the execution of this Agreement. The aggregate proceeds of terms and conditions therein, on the Closing Date the Equity Financing, along with the Company Cash on Hand, will be sufficient to fund (i) the payment of the aggregate Transaction Consideration for the acquisition or conversion of all shares of Company Common Stock (other than the Cancelled Shares) pursuant to the Merger (assuming no Dissenting Shares) and all consideration payable pursuant to this Agreement in respect of Company Stock Awards, and (ii) the payment of all fees and expenses required to be paid by Parent or Merger Sub at Closing in connection with the Transactions (such amount, the “Required Funding Amount”). As of the date hereof, the commitment Equity Commitment Letter has not been amended, restated, supplemented or modified in any respect or waived and no such amendment, restatement, supplement, modification or waiver is contemplated, and the obligations and commitments contained in the Equity Commitment Letter has have not been withdrawn, reduced, rescinded, amended, restated, otherwise modified or rescinded repudiated in any respectrespect or terminated in any respect prior to the date of this Agreement and no such withdrawal, reduction, rescission, amendment, restatement, other modification, repudiation or termination is contemplated. As of the date hereof, other than as expressly set forth in the Equity Commitment Letter there are no engagement letters, side letters, contracts, understandings, agreements or other commitments or arrangements of any kind, whether written or oral, relating to the financing of the Transactions, that could affect the conditionality, enforceability, availability, termination or amount of the Equity Financing. Assuming the accuracy of the representations and warranties of the Company set forth in this Agreement and the performance in all material respects by the Company of its obligations under this Agreement, the aggregate proceeds of the Equity Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and charges) assuming funded in accordance with the Equity Commitment Letter, will be sufficient to (i) fund all of the amounts required to be provided by Parent and/or Merger Sub for the consummation of the Transactions and (ii) perform all of Parent’s and Mexxxx Xub’s payment obligations under Article III, the payment of all amounts in connection with the refinancing or repayment of any outstanding indebtedness of the Acquired Companies required by this Agreement and the payment of all associated costs and expenses of the Transactions (including any fees and expenses related to the transactions contemplated hereby, including the Equity Financing). The Equity Commitment Letter Letter, in the form so delivered to the Company, is in full force and effect against Parent andand constitute legal, to the Knowledge of Parent, each other party thereto and represents valid, binding and enforceable obligations of Parent and, to the Knowledge of Parent, and each other party thereto (subject to the Bankruptcy Enforceability Exceptions) to provide the financing contemplated thereby subject only to the satisfaction or waiver of the terms thereof. Parent has fully paid (or caused to be paid) any and all commitment fees and other amounts required by the Equity Exception). As of Commitment Letter and/or the Equity Financing, in each case, that are due and payable on or prior to the date of this Agreement, assuming and will pay (or cause to be paid) in full all commitment fees and other amounts required by the satisfaction Equity Commitment Letter and/or the Equity Financing, in each case, that are due and payable at or prior to Closing. Neither Parent nor Merger Sub, nor any other party to the Equity Commitment Letter, is in default in the performance, observation or fulfillment of any obligation, covenant or condition contained in the conditions set forth in Section 6.1 Equity Commitment Letter, and Section 6.2, no event has occurred of which Parent is aware thator circumstance exists which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute or result in a default under or breach or default on the part of Parent or Merger Sub, or on the part of any other party thereto under any term of the Equity Commitment Letter that would reasonably be expected to materially impair or adversely affect the Equity Financing and the timely receipt of the proceeds thereofLetter. As of the date of this Agreement, assuming Assuming the satisfaction or waiver of the conditions to the Parent Parties’ obligation to consummate the Merger and the accuracy of the representations and warranties of the Company set forth in Section 6.1 and Section 6.2Article IV hereof, neither Parent nor Merger Sub has no any reason to believe that it or any other party to the Equity Commitment Letter thereto will be unable to satisfy on a timely basis basis, and in any applicable Financing Condition event, not later than the Closing, any term or their respective obligations under condition of the Equity Commitment Letter. Except as set forth Letter required to be satisfied by it or that the full amounts committed pursuant to the Equity Commitment Letter will not be available on the Closing Date if the terms or conditions to be satisfied by it contained in the Equity Commitment Letter, there Letter are satisfied. There are no conditions precedent or other contingencies related to the funding or investing of the full amount net proceeds (or any portion) of the Equity Financing at the Closing other than the applicable Financing Conditions. As of the date of this Agreement, assuming the satisfaction of the conditions as set forth in Section 6.1 and Section 6.2, Parent has no reason to believe that (i) any of the Financing Conditions will not be satisfied or (ii) the Equity Financing will not be made available in full to Parent on the Closing DateCommitment Letter. Parent and Xxxxxx Sub Mexxxx Xub expressly agree and acknowledge that their obligations hereunder, including XxxxxxPaxxxx’s and Xxxxxx SubMexxxx Xub’s obligations to consummate the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of any financing.