Common use of Financing Commitments Clause in Contracts

Financing Commitments. The Company, Purchaser and Merger Sub shall use their respective reasonable best efforts to cause the Financing Commitments to be fulfilled in accordance with their terms (to the extent such fulfillment is within the control of the Company and Purchaser). Without limiting the generality of the foregoing, each of the Company and Purchaser shall use its reasonable best efforts to cause their respective employees, accountants, counsel and other representatives to reasonably cooperate with each other in carrying out the transactions contemplated by the Financing Commitments and in delivering all documents and instruments deemed reasonably necessary by the Company or Purchaser (including providing standard accountants' "comfort" letters and legal opinions and otherwise cooperating and assisting in satisfying the conditions to the Financing Commitments and assisting with the syndication or marketing of the Financing contemplated thereby including, by (i) providing direct contact between prospective lenders and the officers and directors of the Company and its Subsidiaries and (ii) providing assistance in preparation of confidential information memoranda and other materials to be used in connection with consummating the Financing and Refinancing) and taking all other actions reasonably necessary in connection with the Financing, including the issuance of the New Notes in the Notes Offering, and the Refinancing. The Company, Purchaser and Merger Sub shall cooperate in connection with the preparation of all documents and the making of all filings required in connection with the Financing, including the Notes Offering and the Refinancing (including the Note Tender Offer), and shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all other things necessary, proper or advisable to consummate the Financing and the Refinancing and the other transactions contemplated hereby. The Company and Purchaser shall immediately provide the Stockholders' Representative with written notice of any written amendments to the terms and conditions of the Financing Commitments and the Company shall promptly notify the Stockholders' Representative in writing of any fact or occurrence that could reasonably be expected to cause any conditions to the financing provided for by the Financing Commitments not to be satisfied.

Financing Commitments. The Company, Purchaser and Merger Sub shall use their respective reasonable best efforts to cause the Financing Commitments to be fulfilled in accordance with their terms (to the extent such fulfillment is within the control of the Company and Purchaser). Without limiting the generality of the foregoing, each of the Company and Purchaser a) Buyer shall use its reasonable best efforts to cause their respective employees, accountants, counsel and other representatives to reasonably cooperate with each other in carrying out the transactions contemplated by the Financing Commitments and in delivering all documents and instruments deemed reasonably necessary by the Company or Purchaser (including providing standard accountants' "comfort" letters and legal opinions and otherwise cooperating and assisting in satisfying the conditions to the Financing Commitments and assisting with the syndication or marketing of the Financing contemplated thereby including, by (i) providing direct contact between prospective lenders and the officers and directors of the Company and its Subsidiaries and (ii) providing assistance in preparation of confidential information memoranda and other materials to be used in connection with consummating the Financing and Refinancing) and taking all other actions reasonably necessary in connection with the Financing, including the issuance of the New Notes in the Notes Offering, and the Refinancing. The Company, Purchaser and Merger Sub shall cooperate in connection with the preparation of all documents and the making of all filings required in connection with the Financing, including the Notes Offering and the Refinancing (including the Note Tender Offer), and shall use their respective reasonable best efforts to take, or cause to be taken, all actions and shall use its reasonable best efforts to do, or cause to be done, all other things necessary, proper or advisable to consummate obtain the proceeds of the Debt Financing and the Refinancing and the other transactions contemplated hereby. The Company and Purchaser shall immediately provide the Stockholders' Representative with written notice of any written amendments to on the terms and conditions of described in the Financing Commitments Debt Commitment Letter, including using reasonable best efforts to (i) maintain in effect the Debt Commitment Letter, (ii) satisfy (or obtain the waiver of) on a timely basis all conditions applicable to Buyer to obtain the Debt Financing, including, as promptly as practicable following the Agreement Date and receipt from Parent or its Affiliates, as applicable, delivering to the Company shall promptly notify Lead Arranger (as defined in the Stockholders' Representative Debt Commitment Letter), the documents and information required under the Debt Commitment Letter to commence the marketing period under the Debt Commitment Letter, (iii) negotiate definitive agreements with respect thereto on the terms and conditions contained in writing of the Debt Commitment Letter (including any fact “flex” provisions) or occurrence that could on other terms that, in the Buyer’s sole discretion, (A) would otherwise be permitted by Section 5.11(b) and (B) would not reasonably be expected to cause materially delay or adversely affect, in any material respect, the ability of Buyer to consummate the transactions contemplated hereby, (iv) consummate the Debt Financing at or prior to the Closing and (v) enforce its rights under the Debt Commitment Letter. Buyer shall not permit any amendment or modification to be made to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or any ancillary letters referred to therein without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned) if such amendment, modification or waiver (A) adds any new conditions to the financing provided for consummation of all or any portion of the Debt Financing or amends, replaces, supplements or modifies any existing conditions to the consummation of all or any portion of the Debt Financing in a manner that would reasonably be expected to prevent, or impede or materially delay the Debt Financing, (B) reduces (or has the effect of reducing) the amount of the Debt Financing (including by increasing the Financing Commitments not amount of fees to be satisfiedpaid or original issue discount in respect of the Debt Financing (except as set forth in any flex provisions existing on the date hereof)) to an amount that, together with other available cash or other funds of Buyer and its Subsidiaries, would on the Closing Date be less than the amount required to consummate the transactions contemplated by this Agreement, (C) could otherwise reasonably be expected to prevent, impede or materially delay availability of the Debt Financing or (D) materially adversely affects the ability of Buyer to enforce its rights under the Debt Commitment Letter or any Alternative Financing. In the event that the Debt Commitment Letter is amended, replaced, supplemented or Alternative Financing is obtained, Buyer shall comply with its covenants in this Section 5.11(a) and Section 5.11(b) with respect to the Debt Commitment Letter as so amended, replaced, supplemented or with respect to the Alternative Financing, if applicable, to the same extent that Buyer would have been obligated to comply with respect to the Debt Financing. Notwithstanding the foregoing, Buyer shall be permitted to amend, modify or supplement the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, agents or similar entities who have not executed the Debt Commitment Letter as of the date hereof on terms substantially similar to those contained in the Debt Commitment Letter.

Financing Commitments. (a) The Company, Purchaser and Merger Sub shall Buyer will use their respective its reasonable best efforts to cause the Financing Commitments to be fulfilled in accordance with their terms (i) fully satisfy, on a timely basis, subject to the extent terms and conditions of this Agreement and the Debt Commitment Letters, the terms, conditions, representations and warranties set forth in the Debt Commitment Letters, (ii) maintain in effect the Debt Commitment Letters and negotiate definitive agreements with respect to the Debt Commitment Letters on the terms and conditions set forth in the Debt Commitment Letter or on other terms no less favorable, in the aggregate, to the Buyer than those in the Debt Commitment Letters and that would not be reasonably expected to prevent the Closing from occurring on or before the End Date, (iii) satisfy on a timely basis all conditions applicable to Buyer set forth in such fulfillment is definitive agreements that are within their reasonable control and (iv) consummate the control Debt Financing contemplated by the Debt Commitment Letters at or prior to the Closing. In the event that all conditions in the Debt Commitment Letters (other than the availability of funding any of the Company and Purchaser). Without limiting Equity Financing) have been satisfied or, upon funding, will be satisfied, the generality of the foregoing, each of the Company and Purchaser Buyer shall use its reasonable best efforts to cause their respective employees, accountants, counsel such lender and the other representatives Persons providing the Debt Financing to reasonably cooperate with each other in carrying out fund on the Closing Date the Debt Financing required to consummate the transactions contemplated by the Financing Commitments and in delivering all documents and instruments deemed reasonably necessary by the Company or Purchaser (including providing standard accountants' "comfort" letters and legal opinions this Agreement and otherwise cooperating and assisting in satisfying enforce its rights under the conditions Debt Commitment Letter. The Buyer agrees to notify the Seller promptly if at any time prior to the Financing Commitments and assisting with the syndication or marketing of the Financing contemplated thereby including, by Closing Date (i) providing direct contact between prospective lenders and the officers and directors of the Company and its Subsidiaries and any Debt Commitment Letter shall expire or be terminated for any reason, or (ii) providing assistance in preparation of confidential information memoranda and other materials any Financing Source that is a party to be used in connection with consummating any Debt Commitment Letter notifies the Financing and Refinancing) and taking all other actions reasonably necessary in connection with Buyer that such source no longer intends to provide financing to the Financing, including Buyer on the issuance of the New Notes in the Notes Offering, and the Refinancingterms set forth therein. The CompanyBuyer shall not amend, Purchaser and Merger Sub shall cooperate in connection with the preparation of all documents and the making of all filings required in connection with the Financing, including the Notes Offering and the Refinancing (including the Note Tender Offer), and shall use their respective reasonable best efforts to takealter or waive, or cause agree to be takenamend, all actions and to doalter or waive, or cause to be done, all other things necessary, proper or advisable to consummate the Financing and the Refinancing and the other transactions contemplated hereby. The Company and Purchaser shall immediately provide the Stockholders' Representative with written notice of any written amendments to the terms and conditions of the Financing Commitments and the Company shall promptly notify the Stockholders' Representative Debt Commitment Letter in writing of any fact or occurrence manner that could would reasonably be expected to cause any conditions materially impair, materially delay or prevent the occurrence of the transactions contemplated by this Agreement without the prior written consent of the Seller. The Buyer will furnish correct and complete copies of definitive agreements with respect to the financing provided for by Debt Financing to the Financing Commitments not to be satisfiedSeller promptly upon their execution.

Financing Commitments. The Company, Purchaser and Merger Sub shall use their respective reasonable best efforts to cause the Financing Commitments to be fulfilled in accordance with their terms (to the extent such fulfillment is within the control of the Company and Purchaser). Without limiting the generality of the foregoing, each of the Company and Purchaser a) Buyer shall use its reasonable best efforts to cause their respective employees, accountants, counsel and other representatives to reasonably cooperate with each other in carrying out the transactions contemplated by the Financing Commitments and in delivering all documents and instruments deemed reasonably necessary by the Company or Purchaser (including providing standard accountants' "comfort" letters and legal opinions and otherwise cooperating and assisting in satisfying the conditions to the Financing Commitments and assisting with the syndication or marketing of the Financing contemplated thereby including, by (i) providing direct contact between prospective lenders and the officers and directors of the Company and its Subsidiaries and (ii) providing assistance in preparation of confidential information memoranda and other materials to be used in connection with consummating the Financing and Refinancing) and taking all other actions reasonably necessary in connection with the Financing, including the issuance of the New Notes in the Notes Offering, and the Refinancing. The Company, Purchaser and Merger Sub shall cooperate in connection with the preparation of all documents and the making of all filings required in connection with the Financing, including the Notes Offering and the Refinancing (including the Note Tender Offer), and shall use their respective reasonable best efforts to take, or cause to be taken, all actions and shall use its reasonable best efforts to do, or cause to be done, all other things necessary, proper or advisable to consummate obtain the proceeds of the Debt Financing and the Refinancing and the other transactions contemplated hereby. The Company and Purchaser shall immediately provide the Stockholders' Representative with written notice of any written amendments to on the terms and conditions of described in the Financing Commitments Debt Commitment Letter, including using reasonable best efforts to (i) maintain in effect the Debt Commitment Letter, (ii) satisfy (or obtain the waiver of) on a timely basis all conditions applicable to Buyer to obtain the Debt Financing, including, as promptly as practicable following the Agreement Date and receipt from Parent or its Affiliates, as applicable, delivering to the Company shall promptly notify Lead Arranger (as defined in the Stockholders' Representative Debt Commitment Letter), the documents and information required under the Debt Commitment Letter to commence the marketing period under the Debt Commitment Letter, (iii) negotiate definitive agreements with respect thereto on the terms and conditions contained in writing of the Debt Commitment Letter (including any fact “flex” provisions) or occurrence that could on other terms that, in the Buyer’s sole discretion, (A) would otherwise be permitted by Section 5.11(b) and (B) would not reasonably be expected to cause materially delay or adversely affect, in any material respect, the ability of Buyer to consummate the transactions contemplated hereby, (iv) consummate the Debt Financing at or prior to the Closing and (v) enforce its rights under the Debt Commitment Letter. Buyer shall not permit any amendment or modification to be made to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or any ancillary letters referred to therein without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned) if such amendment, modification or waiver (A) adds any new conditions to the financing provided for consummation of all or any portion of the Debt Financing or amends, replaces, supplements or modifies any existing conditions to the consummation of all or any portion of the Debt Financing in a manner that would reasonably be expected to prevent, or impede or materially delay the Debt Financing, (B) reduces (or has the effect of reducing) the amount of the Debt Financing (including by increasing the Financing Commitments not amount of fees to be satisfiedpaid or original issue discount in respect of the Debt Financing (except as set forth in any flex provisions existing on the Agreement Date)) to an amount that, together with other available cash or other funds of Buyer and its Subsidiaries, would on the Closing Date be less than the amount required to consummate the transactions contemplated by this Agreement, (C) could otherwise reasonably be expected to prevent, impede or materially delay availability of the Debt Financing or (D) materially adversely affects the ability of Buyer to enforce its rights under the Debt Commitment Letter or any Alternative Financing. In the event that the Debt Commitment Letter is amended, replaced, supplemented or Alternative Financing is obtained, Buyer shall comply with its covenants in this Section 5.11(a) and Section 5.11(b) with respect to the Debt Commitment Letter as so amended, replaced, supplemented or with respect to the Alternative Financing, if applicable, to the same extent that Buyer would have been obligated to comply with respect to the Debt Financing. Notwithstanding the foregoing, Buyer shall be permitted to amend, modify or supplement the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, agents or similar entities who have not executed the Debt Commitment Letter as of the Agreement Date on terms substantially similar to those contained in the Debt Commitment Letter.

Financing Commitments. The Company, Purchaser Parent and Merger Sub Subsidiary shall use their respective commercially reasonable best efforts to cause the Financing Commitments to be fulfilled in accordance with their terms (to the extent such fulfillment is within the control of the Company and Purchaser). Without limiting the generality of the foregoing, each of the Company and Purchaser shall use its reasonable best efforts to cause their respective employees, accountants, counsel and other representatives to reasonably cooperate with each other in carrying out the transactions contemplated by the Financing Commitments and in delivering all documents and instruments deemed reasonably necessary by the Company or Purchaser (including providing standard accountants' "comfort" letters and legal opinions and otherwise cooperating and assisting in satisfying the conditions to the Financing Commitments and assisting with the syndication or marketing of the Financing contemplated thereby including, by (i) providing direct contact between prospective lenders and the officers and directors of the Company and its Subsidiaries and (ii) providing assistance in preparation of confidential information memoranda and other materials to be used in connection with consummating the Financing and Refinancing) and taking all other actions reasonably necessary in connection with the Financing, including the issuance of the New Notes in the Notes Offering, and the Refinancing. The Company, Purchaser and Merger Sub shall cooperate in connection with the preparation of all documents and the making of all filings required in connection with the Financing, including the Notes Offering and the Refinancing (including the Note Tender Offer), and shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all other things necessary, proper or advisable to consummate arrange and obtain the Financing and the Refinancing and the other transactions contemplated hereby. The Company and Purchaser shall immediately provide the Stockholders' Representative with written notice of any written amendments to on the terms and conditions of described in the Financing Commitments, including by using commercially reasonable efforts to (i) maintain in effect the Financing Commitments, (ii) negotiate and enter into definitive agreements with respect to the Financing Commitments on the terms and conditions reflected in the Company Financing Commitments, (iii) satisfy on a timely basis all conditions applicable to Parent and Sub Merger Subsidiary in such definitive agreements that are within their control, and (iv) consummate the Financing at or prior to Closing; provided that notwithstanding, and as an alternative to, the foregoing, Parent and Merger Subsidiary may in any case obtain alternative financing from alternative sources on terms that are not less favorable, in the aggregate, to Parent and Subsidiary then the Financing contemplated by the Financing Commitments ("NEW FINANCING COMMITMENTS"); provided further that any such New Financing Commitments shall promptly notify not (A) expand or adversely change in any material respect the Stockholders' Representative conditions to the Financing set forth in writing of any fact the Financing Commitments or occurrence that could (B) reasonably be expected to cause adversely impact the ability of Parent and Merger Subsidiary to perform their respective obligations under this Agreement. In any conditions event, Parent shall disclose to the financing provided for Company its intention to obtain such New Financing Commitments, shall keep the Company reasonably informed of the material terms thereof and shall deliver to the Company final drafts of all documents relating to such New Financing Commitments. Upon and from and after such event, the term "Financing" as used herein shall be deemed to mean the Financing contemplated by the Financing Commitments to the extent in effect at the time in question and the New Financing Commitments to the extent then in effect. In the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments for any reason, Parent shall give the Company prompt notice and keep the Company reasonably informed on a reasonable basis and in reasonable detail as set forth herein of the status of its commercially reasonable efforts to arrange, as promptly as practicable following the occurrence of such event, alternative financing from alternative sources on terms that are not less favorable, in the aggregate, to be satisfiedParent and Merger Subsidiary then the Financing contemplated by the Financing Commitments.

Financing Commitments. The Company, Purchaser and Merger Sub shall use their respective reasonable best efforts to cause take all actions prior to the Closing Date required under the Commitment Letter to obtain the Debt Financing on the terms and conditions set forth in the Commitment Letter (including, as necessary, any “flex” provisions of the Fee Letter), including to (i) maintain in effect each Commitment Letter and negotiate a definitive agreement (collectively, the “Financing Agreements”) with respect to the Commitment Letter on the terms and conditions set forth in the Commitment Letter, (ii) subject to compliance by the Sellers with their covenants and agreements hereunder, comply with all covenants and agreements of the Purchaser set forth in the Commitment Letter and the Financing Commitments to be fulfilled in accordance with their terms Agreements, (iii) satisfy on a timely basis all conditions applicable to the extent such fulfillment is Purchaser set forth in the Commitment Letter and the Financing Agreements that are within its control and (iv) assuming the control satisfaction of the Company and Purchaser)conditions set forth in Article VII, consummate the Debt Financing at the Closing. Without limiting the generality If any portion of the foregoingDebt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (including any related flex terms) (a “Financing Failure Event”), each of the Company and Purchaser shall use its reasonable best efforts to cause their respective employees, accountants, counsel and other representatives to reasonably cooperate with each other in carrying out the transactions contemplated by the Financing Commitments and in delivering all documents and instruments deemed reasonably necessary by the Company or Purchaser (including providing standard accountants' "comfort" letters and legal opinions and otherwise cooperating and assisting in satisfying the conditions to the Financing Commitments and assisting with the syndication or marketing of the Financing contemplated thereby including, by (i) providing direct contact between prospective lenders and the officers and directors of the Company and its Subsidiaries and (ii) providing assistance in preparation of confidential information memoranda and other materials to be used in connection with consummating the Financing and Refinancing) and taking all other actions reasonably necessary in connection with the Financing, including the issuance of the New Notes in the Notes Offering, and the Refinancing. The Company, Purchaser and Merger Sub shall cooperate in connection with the preparation of all documents and the making of all filings required in connection with the Financing, including the Notes Offering and the Refinancing (including the Note Tender Offer), and shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all other things necessary, proper or advisable to arrange for and obtain as promptly as practicable following the occurrence of any such Financing Failure Event alternative debt financing (the “Alternative Financing”), including from alternative sources on terms that are not materially less favorable in the aggregate to Purchaser than the terms of the Debt Commitment Letter (including any “flex” provisions applicable thereto), in an amount sufficient (when added to the portion of the Debt Financing that is available) to consummate the Financing and the Refinancing and the other transactions contemplated hereby. The Company hereby and perform all of its obligations hereunder, it being understood and agreed that if Purchaser proceeds with any Alternative Financing, Purchaser shall immediately be subject to the same obligations with respect to such Alternative Financing as set forth in this Agreement with respect to the Debt Financing. In the event that Alternative Financing is obtained, Purchaser shall promptly provide the Stockholders' Representative Sellers with written notice of any written amendments to the terms and conditions a copy of the new financing commitment that provides for such Alternative Financing Commitments (the “Alternative Financing Commitment Letter”). If applicable, any reference in this Agreement to “Debt Financing” shall include “Alternative Financing”, any reference to “Debt Commitment Letter” shall include the “Alternative Financing Commitment Letter” and any references to “Financing Agreements” shall include the Company shall promptly notify the Stockholders' Representative in writing of definitive documentation relating to any fact or occurrence that could reasonably be expected to cause any conditions to the financing provided for by the Financing Commitments not to be satisfiedsuch Alternative Financing.

Financing Commitments. The CompanyOn or before the fifth (5th) day after the execution and delivery of this Agreement by all parties hereto, Purchaser and Merger Sub Buyer shall use their respective reasonable best efforts to cause the Financing Commitments to be fulfilled in accordance with their terms (deliver to the extent Xxxxxxx Entities a true, correct and complete copy of its fully executed loan application (which shall contain, among other things, all conditions precedent to the funding of such fulfillment is within loans) for senior and junior debt to finance the control Purchase Price, subject to the last sentence of this paragraph. On or before the Company thirtieth (30th) day after the execution and Purchaser). Without limiting delivery of this Agreement by all parties hereto, Buyer shall deliver to the generality of Xxxxxxx Entities a written, signed acknowledgement, in form and substance reasonably acceptable to the foregoingXxxxxxx Entities, by each of the Company its senior and Purchaser shall use its reasonable best efforts to cause their respective employees, accountants, counsel and other representatives to reasonably cooperate with each other in carrying out the transactions contemplated by the Financing Commitments and in delivering all documents and instruments deemed reasonably necessary by the Company or Purchaser junior lenders (including providing standard accountants' "comfort" letters and legal opinions and otherwise cooperating and assisting in satisfying the conditions subject to the Financing Commitments last sentence of this paragraph) financing the Purchase Price, describing the status of such lender's diligence process and assisting with stating that based on the syndication or marketing diligence it has performed to such date, such lender knows of the Financing contemplated thereby including, by (i) providing direct contact between prospective lenders and the officers and directors no state of the Company and its Subsidiaries and (ii) providing assistance in preparation of confidential information memoranda and other materials to be used in connection with consummating the Financing and Refinancing) and taking all other actions reasonably necessary in connection with the Financing, including the issuance of the New Notes in the Notes Offering, and the Refinancing. The Company, Purchaser and Merger Sub shall cooperate in connection with the preparation of all documents and the making of all filings required in connection with the Financing, including the Notes Offering and the Refinancing (including the Note Tender Offer), and shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all other things necessary, proper or advisable to consummate the Financing and the Refinancing and the other transactions contemplated hereby. The Company and Purchaser shall immediately provide the Stockholders' Representative with written notice of any written amendments to the terms and conditions of the Financing Commitments and the Company shall promptly notify the Stockholders' Representative in writing of any fact or occurrence facts that could reasonably be expected to cause any conditions prevent it from funding the senior and junior loans, as applicable (each, a "Comfort Letter"). In the event the Comfort Letters are not delivered on or before such thirtieth (30th) day, or if the Comfort Letters are not reasonably acceptable to the Xxxxxxx Entities, then the Xxxxxxx Entities shall so notify Buyer. Buyer shall have five (5) business days after such notice to deliver a revised or replacement Comfort Letter from a lending institution, reasonably acceptable to the Xxxxxxx Entities, if applicable, from which the senior and if applicable junior loans will be available. On or before the forty-fifth (45th) day after the execution and delivery of this Agreement by all parties hereto, Buyer shall deliver to the Xxxxxxx Entities a written, signed acknowledgement from each of its senior and junior lender(s) financing the Purchase Price that such lender(s) have completed all diligence and received all approvals required for the funding of such loans provided for by that failure to deliver the Financing Commitments required hereunder shall not be deemed a breach of this Agreement. Buyer's failure to timely comply with the provisions of this Section 8.2.12 shall permit the Xxxxxxx Entities, at their option, by written notice to Buyer delivered to Buyer not later than the fifth (5th) business day after the required date for such delivery, to terminate this Agreement, provided that the Xxxxxxx Entities are not then in material breach of this Agreement. If the Xxxxxxx Entities have not timely terminated this Agreement pursuant to the immediately preceding sentence, such termination right shall be waived. In the event of said termination, the Escrow Agent shall pay the Deposit to Buyer. Notwithstanding anything to the contrary contained herein, in the event that Buyer does not obtain or elects not to pursue junior or mezzanine financing, then on such thirtieth (30th) day and forty-fifth (45th) day, Buyer shall provide the Xxxxxxx Entities with evidence reasonably satisfactory to the Xxxxxxx Entities that equity contributions will be satisfiedavailable in an amount sufficient, when aggregated with senior financing, to pay the Purchase Price.

Financing Commitments. The Company, Purchaser and Merger Sub shall use their respective reasonable best efforts to cause the Financing Commitments to be fulfilled in accordance with their terms (to the extent such fulfillment is within the control As of the Company date of this Amendment, Parent has entered into a new commitment letter together with a term sheet and Purchaser). Without limiting related documents (collectively, the generality of the foregoing, each of the Company and Purchaser shall use its reasonable best efforts to cause their respective employees, accountants, counsel and other representatives to reasonably cooperate with each other in carrying out the transactions contemplated by the Financing Commitments and in delivering all documents and instruments deemed reasonably necessary by the Company or Purchaser (including providing standard accountants' "comfort" letters and legal opinions and otherwise cooperating and assisting in satisfying the conditions to the Financing Commitments and assisting “Restated Bank Commitment Letter”) with the syndication or marketing of Bank, pursuant to which the Financing contemplated thereby including, by (i) providing direct contact between prospective lenders and the officers and directors of the Company and its Subsidiaries and (ii) providing assistance in preparation of confidential information memoranda and other materials Bank has committed to be used in connection with consummating the Financing and Refinancing) and taking all other actions reasonably necessary in connection with the Financing, including the issuance of the New Notes in the Notes Offering, and the Refinancing. The Company, Purchaser and Merger Sub shall cooperate in connection with the preparation of all documents and the making of all filings required in connection with the Financing, including the Notes Offering and the Refinancing (including the Note Tender Offer), and shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all other things necessary, proper or advisable provide financing sufficient to consummate the Financing and Merger (the Refinancing and the other transactions contemplated hereby“Financing”). The Company and has been provided with a copy of the Restated Bank Commitment Letter. Neither the Parent nor the Purchaser shall immediately provide the Stockholders' Representative with written notice of has agreed to any written amendments condition to the terms and conditions Bank’s obligations to fund the commitments under the Restated Bank Commitment Letter other than as set forth in the Restated Bank Commitment Letter. As of the Financing Commitments date of this Amendment, the Parent and the Company shall promptly notify the Stockholders' Representative in writing Purchaser have no actual knowledge of any fact or occurrence that could in their good faith judgment is expected to (i) make the material assumptions or statements set forth in the Restated Bank Commitment Letter inaccurate, (ii) cause the Restated Bank Commitment Letter to be ineffective or (iii) preclude in any material respect the satisfaction of the conditions set forth in the Restated Bank Commitment Letter. As of the date of this Amendment, the Restated Bank Commitment Letter is in full force and effect. To the knowledge of the Parent and the Purchaser, the funds contemplated to be received pursuant to the Restated Bank Commitment Letter, together with any additional funds from the Parent, to be deposited in trust with the Paying Agent for the benefit of holders of Company Common Stock will be sufficient to consummate the Merger and to pay all related fees and Expenses. The fees that are due and payable under the Restated Bank Commitment Letter (i) as of the date of this Amendment have been paid in full and (ii) as of the Closing will be paid in full. The Parent and the Purchaser have no actual knowledge of any fact or occurrence existing on the date of this Amendment that in their good faith judgment would reasonably be expected to cause any conditions indicate that, upon consummation of the transactions contemplated by the Merger Agreement, including the Financing, the Parent, the Surviving Corporation, and their Subsidiaries, taken as a whole, will be insolvent, will be left with unreasonably small capital, will have incurred debts beyond their ability to pay such debts as they mature, or will have impaired capital. From and after the date of this Amendment, all references to “Bank Commitment Letters” in the Merger Agreement shall be deemed to be, to the financing provided for by extent applicable, references to the Financing Commitments not to be satisfiedRestated Commitment Letter.