Common use of Capital Resources Clause in Contracts

Capital Resources. Parent has delivered to the Company true, correct and complete copies of the debt commitment letter dated as of the date of this Agreement from Deutsche Bank AG New York Branch, Deutsche Bank AG Cayman Islands Branch, Credit Suisse AG, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. and UBS AG, Stamford Branch (as the same may be amended or replaced and including any executed commitment letter (or similar agreement) for Alternate Financing, in each case, pursuant to Sections 6.19(b) or 6.19(c), as applicable (the “Debt Commitment Letter”) pursuant to which, and subject to the terms and conditions thereof, the lenders party there to have committed to provide or cause to be provided debt financing as described therein (the “Debt Financing”) and the equity commitment letter dated as of the date of this Agreement from the Guarantor (the “Equity Commitment Letter,” and together with the Debt Commitment Letter, the “Commitment Letters”) pursuant to which the Guarantor has committed, subject to the terms and conditions thereof, to invest the amounts as described therein (the “Equity Financing” and together with the Debt Financing, the “Financing”). Each of the Commitment Letters is a legal, valid and binding obligation of the parties thereto in accordance with the terms and conditions thereof, subject to the Bankruptcy and Equity Exception. None of the Commitment Letters has been amended or modified prior to the date of this Agreement, and, as of the date hereof, the respective commitments contained in the Commitment Letters have not been withdrawn, terminated or rescinded in any respect. Assuming (i) the accuracy of the representation and warranties set forth in Article IV and (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement, in each case such that the conditions set forth in Section 7.2 would be satisfied, the aggregate net proceeds contemplated by the Commitment Letters will be sufficient for Parent and Merger Sub to consummate the Offer and the Merger in accordance with this Agreement and to pay all fees and expenses payable by them in connection with the Transactions (such amount, the “Required Amount”). The obligations of the financing sources to fund the commitments under the Commitment Letters are not subject to any conditions, side agreements or other arrangements or understandings (except for fee credit letters and engagement letters and a fee letter, a copy of which has been provided to the Company with only the amount of fees, “pricing flex” and other economic terms therein redacted) other than as set forth in the Commitment Letters. As of the date of this Agreement, no event has occurred that (with or without notice, lapse of time, or both) would constitute a breach or default under the Commitment Letters by Parent or Merger Sub. Parent has no knowledge of any facts or circumstances that, assuming satisfaction of the conditions set forth in Section 7.1 and Section 7.2, would be reasonably likely to result in (a) the conditions precedent set forth in the Commitment Letters not being satisfied or (b) the funding contemplated in the Commitment Letters not being made available to Parent in order to consummate the Transactions at the Closing. Parent has fully paid any and all commitment and other fees that have been incurred and are due and payable on or prior to the date hereof in connection with the Commitment Letters and has otherwise satisfied all of the other terms and conditions required to be satisfied pursuant to the terms of the Commitment Letters on or prior to the date hereof, and Parent will pay when due all other commitment fees arising under the Commitment Letters as and when they become payable.

Capital Resources. Parent has delivered to the Company true, correct a true and complete copies (subject to redactions of the debt commitment letter dated pricing related information and economic information) copy as of the date hereof of this the executed Syndicated Dual-Currency Term Loan Facilities Agreement from Deutsche Bank AG New York Branchdated September 22, 2014, by and among Parent, Merck Financial Services GmbH, Deutsche Bank AG Cayman Islands Branch, Credit Suisse AG, ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior FundingLimited, Inc. Societe Generale London Branch, Deutsche Bank Luxembourg S.A. and UBS AG, Stamford Branch the other financial institutions party thereto from time to time (as amended, restated, supplemented or otherwise modified from time to time to the same may be amended or replaced extent permitted under Section 7.14, the “Credit Agreement”; the financing contemplated by the Credit Agreement, the “Credit Agreement Financing”; and including any executed commitment letter (or similar agreement) for Alternate the Credit Agreement Financing, together with any issuance of equity or hybrid securities or indebtedness for borrowed money by Parent and/or any of its Subsidiaries from time to time after the date hereof that is intended to finance in each case, pursuant to Sections 6.19(b) or 6.19(c), as applicable any part the transactions contemplated hereby (it being understood that the “Debt Commitment Letter”) pursuant to which, and proceeds of any such issuance that reduce the commitments under the Credit Agreement shall be subject to the terms and conditions thereof, the lenders party there to have committed to provide or cause to be provided debt financing as described therein (the “Debt Financing”) and the equity commitment letter dated as of the date of this Agreement from the Guarantor (the “Equity Commitment Letter,” and together with the Debt Commitment Letter, the “Commitment Letters”) pursuant to which the Guarantor has committed, subject to the terms and conditions thereof, to invest the amounts as described therein (the “Equity Financing” and together with the Debt FinancingSection 7.14), the “Financing”). Each As of the Commitment Letters date hereof, the Credit Agreement is in full force and effect and has not been withdrawn, rescinded or terminated or otherwise amended, supplemented or modified in any respect. The Credit Agreement, in the form so delivered, as of the date hereof, is a legal, valid and binding obligation of Parent and, to the actual knowledge of any individual set forth on Section 9.5(e) of the Parent Disclosure Schedule, the other parties thereto thereto, enforceable against such parties in accordance with its terms, except that (A) such enforcement may be subject to applicable bankruptcy, insolvency or other laws, now or hereafter in effect, affecting creditors’ rights generally and (B) the terms remedy of specific performance and conditions injunctive and other forms of equitable relief may be subject to equitable defenses, including any principle of good faith or reasonableness applying generally to the exercise of contractual rights and obligations under the governing law thereof, subject and to the Bankruptcy and Equity Exception. None discretion of the Commitment Letters has been amended or modified prior court before which any proceeding therefor may be brought. The aggregate amount of funds contemplated to be provided pursuant to the date of this Credit Agreement, and, together with (1) cash and (2) cash equivalents and “current financial assets” (as defined in IFRS as of the date hereof) that, the respective commitments contained in the Commitment Letters have not been withdrawncase of clause (2), terminated or rescinded in any respect. Assuming (i) the accuracy are of the representation type described on Section 6.5(e) of the Parent Disclosure Schedule (clauses (1) and warranties set forth in (2), collectively, “Current Financial Assets”) of the Parent and its Subsidiaries on hand, is sufficient to effect the transactions contemplated hereby, including to pay the amounts contemplated by Article IV and (ii) all costs and expenses associated with the performance by the Company and its Subsidiaries transactions contemplated hereby. As of the covenants contained in this Agreementdate hereof, in each case there are no Contracts relating to the Financing (including the Credit Agreement Financing), except for such that the conditions set forth in Section 7.2 would be satisfied, the aggregate net proceeds contemplated by the Commitment Letters will be sufficient for Parent and Merger Sub Contracts as to consummate the Offer and the Merger in accordance with this Agreement and to pay all fees and expenses payable by them in connection with the Transactions which copies (such amount, the “Required Amount”). The obligations of the financing sources to fund the commitments under the Commitment Letters are not subject to any conditions, side agreements or other arrangements or understandings (except for fee credit letters redactions of pricing-related information and engagement letters and a fee letter, a copy of which has economic information) have been provided to the Company with only by the amount of fees, “pricing flex” and other economic terms therein redacted) other than as set forth in the Commitment Letters. As of Parent on or prior to the date of this Agreement, no hereof. No event has occurred that (that, with or without notice, lapse of time, time or both) , would constitute a material default or material breach on the part of Parent or default any of its Subsidiaries under any term or condition of the Commitment Letters by Credit Agreement, and Parent has no reason to believe that any portion of the Credit Agreement Financing will not be available to Parent or Merger Sub. Parent has no knowledge of any facts or circumstances that, assuming satisfaction of the conditions set forth in Section 7.1 and Section 7.2, would be reasonably likely to result in (a) the conditions precedent set forth in the Commitment Letters not being satisfied or (b) the funding contemplated in the Commitment Letters not being made available to Parent in order Sub on a timely basis to consummate the Transactions at transactions contemplated hereby, including the ClosingMerger (except to the extent that Parent is permitted to reduce the Credit Agreement Financing in accordance with Section 7.14). Parent has fully paid any and all commitment and fees or other fees that have been incurred and are due and payable required by the Credit Agreement to be paid on or prior to the date hereof in connection with the Commitment Letters and has otherwise satisfied all of the other terms and conditions required to be satisfied pursuant to the terms of the Commitment Letters on or prior to before the date hereof. There are no conditions precedent or other contingencies related to the funding of the full amount of the Credit Agreement Financing, and Parent will pay when due all other commitment fees arising under than as expressly set forth in the Commitment Letters as and when they become payableCredit Agreement.

Capital Resources. Parent (a) The Purchaser has delivered to the Company true, correct received and complete copies of the debt accepted an executed commitment letter dated as of the date of this Agreement from Deutsche Bank AG New York Branch, Deutsche Bank AG Cayman Islands Branch, Credit Suisse AG, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. and UBS AG, Stamford Branch (as the same may be amended or replaced and including any executed commitment letter (or similar agreement) for Alternate Financing, in each case, pursuant to Sections 6.19(b) or 6.19(c), as applicable (the “Debt Commitment Letter”) pursuant to which, and subject to the terms and conditions thereof, from the lenders party there thereto (collectively, the “Lenders”) relating to have committed the commitment of the Lenders to provide or cause to be provided debt financing as described therein (the “Debt Financing”) on the terms contemplated thereby. (b) The Purchaser has received and the equity accepted executed commitment letter letters dated as of the date of this Agreement from the Guarantor (the “Equity Commitment Letter,Letters” and and, together with the Debt Commitment Letter, the “Commitment Letters”) pursuant to which from Carlyle Partners IV, L.P. (the Guarantor has committed, subject “Equity Investor”) relating to the terms and conditions thereof, commitment of the Equity Investor to invest provide the amounts as full amount of the cash equity described therein (the “Equity Financing” Cash Equity”, and together with the Debt Financing, the “Financing”), on the terms contemplated thereby. Each Complete and correct copies of the Commitment Letters is a legal, valid and binding obligation of the parties thereto in accordance with the terms and conditions thereof, subject to the Bankruptcy and Equity Exception. None of the Commitment Letters has been amended or modified prior to the date of this Agreement, and, as of the date hereof, the respective commitments contained in the executed Commitment Letters have not been withdrawn, terminated or rescinded in any respect. Assuming (i) the accuracy of the representation and warranties set forth in Article IV and (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement, in each case such that the conditions set forth in Section 7.2 would be satisfied, the aggregate net proceeds contemplated by the Commitment Letters will be sufficient for Parent and Merger Sub to consummate the Offer and the Merger in accordance with this Agreement and to pay all fees and expenses payable by them in connection with the Transactions (such amount, the “Required Amount”). The obligations of the financing sources to fund the commitments under the Commitment Letters are not subject to any conditions, side agreements or other arrangements or understandings (except for fee credit letters and engagement letters and a fee letter, a copy of which has been provided to the Company with only the amount of fees, “pricing flex” and other economic terms therein redactedShareholders. (c) other than Except as expressly set forth in the Commitment Letters. , there are no conditions precedent to the obligations of the Lenders and the Equity Investor to provide the Financing or any contingencies that would permit the Lenders or the Equity Investor to reduce the total amount of the Financing. (d) Subject to its terms and conditions, the Financing will provide the Purchaser with acquisition financing on the Closing Date sufficient to consummate the Transactions on the terms contemplated by this Agreement and to pay related fees and expenses. (e) As of the date of this Agreement, the Commitment Letters are valid, binding and in full force and effect and no event has occurred that (that, with or without notice, lapse of time, or both) , would reasonably be expected to constitute a default or breach or default a failure to satisfy a condition precedent on the part of the Purchaser under the terms and conditions of the Commitment Letters Letters, other than any such default, breach or failure that has been waived by Parent the Lenders or Merger Sub. Parent has no knowledge of any facts the applicable Equity Investor, as the case may be, or circumstances that, assuming otherwise cured in a timely manner by the Purchaser to the satisfaction of the conditions set forth Lenders or such Equity Investor, as the case may be. The Purchaser has paid in Section 7.1 and Section 7.2, would be reasonably likely to result in (a) the conditions precedent set forth in the Commitment Letters not being satisfied or (b) the funding contemplated in the Commitment Letters not being made available to Parent in order to consummate the Transactions at the Closing. Parent has fully paid full any and all commitment and fees or other fees that have been incurred and are due and payable on or prior to the date hereof in connection with the Commitment Letters and has otherwise satisfied all of the other terms and conditions required to be satisfied paid pursuant to the terms of the Commitment Letters on or prior to before the date hereof, and Parent will pay when due all other commitment fees arising under the Commitment Letters as and when they become payableof this Agreement.

Capital Resources. Parent Purchaser has delivered accepted and provided to the Company a true, correct and complete copies copy of the executed debt commitment letter letter, dated as of on or prior to the date of this Agreement from Deutsche Bank AG New York Branchhereof, Deutsche Bank AG Cayman Islands Branch, Credit Suisse AGamong Purchaser, ▇▇▇▇▇▇ ▇▇Fargo Bank, National Association and ▇▇▇▇▇ Senior FundingFargo Securities, Inc. and UBS AG, Stamford Branch LLC (as the same may be amended amended, modified or replaced replaced, including all exhibits, schedules and including any executed commitment letter (or similar agreement) for Alternate Financingannexes attached thereto, in each casecollectively, pursuant to Sections 6.19(b) or 6.19(c), as applicable (the “Debt Commitment Letter”) pursuant and the fee letters referred to which, and subject to the terms and conditions thereof, the lenders party there to have committed to provide or cause to be provided debt financing as described therein (such fee letters, the “Debt Financing”) and the equity commitment letter dated as of the date of this Agreement from the Guarantor (the “Equity Commitment Letter,Fee Letters” and and, together with the Debt Commitment Letter, the “Debt Commitment LettersDocuments”), each of which has been redacted with respect to the fees, expenses, pricing and certain other economic terms and sublimits (including market flex) pursuant that do not affect the conditionality, enforceability, availability at Closing or amount at Closing of the Debt Financing. Pursuant to which the Guarantor terms of the Debt Commitment Documents, ▇▇▇▇▇ Fargo Bank, National Association has committed, upon the terms and subject to the terms and conditions thereof (including, without limitation, the market flex provisions thereof), to invest lend the amounts as described set forth therein for purposes including the financing of the Transactions and related fees and expenses (the “Equity Financing” and together with the Debt Financing, the “Financing”). Each of the Commitment Letters is a legal, valid and binding obligation of the parties thereto in accordance with the terms and conditions thereof, subject to the Bankruptcy and Equity Exception. None of the Commitment Letters has been amended or modified prior to the date of this Agreement, and, as As of the date hereof, no Debt Commitment Document has been amended, restated or otherwise modified or waived in any manner prohibited by Section 6.14 of this Agreement, except, in each case, with the respective prior written consent of the Member Representative (such consent not to be unreasonably withheld, delayed or conditioned), and to the Knowledge of Purchaser, no such amendment, restatement, modification or waiver is contemplated; and the commitments contained in the Debt Commitment Letters Letter have not been withdrawn, terminated modified or rescinded in any respect. Assuming (i) The Debt Commitment Letter constitutes the accuracy valid and legally binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms, and, to the Knowledge of Purchaser, the valid and legally binding obligation of the representation and warranties Debt Financing Sources party thereto to provide the Debt Financing subject only to the satisfaction or waiver of the conditions precedent set forth in Article IV and (ii) the performance by the Company and its Subsidiaries of the covenants contained in this AgreementDebt Commitment Letter, and, in each case such that case, except as may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium, receivership or similar laws relating to or affecting creditors’ rights generally or by general principles of equity. There are no conditions precedent or contingencies related to the conditions set forth in Section 7.2 would be satisfied, the aggregate net proceeds contemplated by the Commitment Letters will be sufficient for Parent and Merger Sub to consummate the Offer and the Merger in accordance with this Agreement and to pay all fees and expenses payable by them in connection with the Transactions (such amount, the “Required Amount”). The obligations funding of the financing sources to fund the commitments under the Commitment Letters are not subject to any conditions, side agreements or other arrangements or understandings (except for fee credit letters and engagement letters and a fee letter, a copy of which has been provided to the Company with only the full amount of fees, “pricing flex” and other economic terms therein redacted) the Debt Financing other than as set forth in the Debt Commitment Documents, and other than the terms of the Debt Financing set forth in Debt Fee Letters, there are no side letters or other contracts or arrangements (oral or written) related to the Debt Financing. As of the date of this Agreement, to the Knowledge of Purchaser, no event has occurred that (which, with or without notice, lapse of time, time or both, (i) would or would reasonably be expected to constitute a default or breach on the part of Purchaser or default under the Commitment Letters by Parent or Merger Sub. Parent has no knowledge of any facts or circumstances that, assuming satisfaction of the conditions set forth in Section 7.1 and Section 7.2, other parties to the Debt Commitment Documents under any term of the Debt Commitment Documents which would be reasonably likely to result in any portion of the Debt Financing contemplated to be available at the Closing to be unavailable at Closing or (aii) assuming the satisfaction of the conditions precedent set forth contained in Sections 7.01 and 7.02 hereof, otherwise would be reasonably likely to result in any portion of the Debt Financing contemplated to be available at the Closing to be unavailable at Closing. As of the date of this Agreement, assuming the satisfaction of the conditions contained in Sections 7.01 and 7.02 hereof, Purchaser has no reason to believe that it or any of the other parties to the Debt Commitment Letters not being satisfied Documents will be unable to satisfy on a timely basis any term or (b) condition to the funding contemplated in Debt Commitment Documents or that any portion of the Commitment Letters not being Debt Financing to be made available thereunder at Closing will otherwise not be available to Parent in order Purchaser on a timely basis to consummate the Transactions Transactions. The net proceeds contemplated from the Debt Financing to be funded at Closing, when funded in accordance with the Closing. Parent has fully paid any Debt Commitment Documents, will, in the aggregate, together with all cash and cash equivalents of Purchaser, be sufficient on the Closing Date for Purchaser to satisfy all commitment and other fees of Purchaser’s payment obligations that have been incurred and are due at Closing under this Agreement, including payment of all related fees and expenses payable on or prior to the date hereof at Closing by Purchaser in connection with the Commitment Letters Transactions and all the obligations payable at Closing under Article I. Purchaser has otherwise satisfied fully paid all of the commitment fees or other terms and conditions fees required to be satisfied paid on or before the date of this Agreement pursuant to the terms of the Debt Commitment Letters on or prior to the date hereof, and Parent will pay when due all other commitment fees arising under the Commitment Letters as and when they become payableDocuments.