Common use of Financing; Solvency Clause in Contracts

Financing; Solvency. (a) Buyer has, as of the date hereof, and will continuously have available to it at all times prior to the Closing (either in the form of cash on hand and/or available and usable capacity under its existing credit facilities) and at the Closing will have, in the form of cash, sufficient funds to consummate the transactions contemplated by this Agreement, including the payment of all amounts payable pursuant to ARTICLE II. Buyer expressly acknowledges and agrees that Buyer’s ability to obtain financing is not a condition to its obligations under this Agreement. (b) No transfer of property is being made and no obligation is being incurred in connection with the Contemplated Transactions by Buyer with the actual intent to hinder, delay or defraud either present or future creditors of the Companies. Assuming that the representations and warranties of the Sellers contained in this Agreement are true and correct in all material respects and each Company is solvent immediately prior to the Closing, and subject to the satisfaction of the conditions to Buyer’s obligation to complete the Closing set forth in Section 7.3, immediately after giving effect to the Contemplated Transactions, Buyer and the Companies on a consolidated basis (i) will be solvent (in that both the fair value of their assets will not be less than the sum of their debts and that the present fair saleable value of their assets will not be less than the amount required to pay their probable liabilities on their debts as they become absolute and matured); (ii) will have adequate capital and liquidity with which to engage in their business; and (iii) will not have incurred and do not plan to incur debts beyond their ability to pay as they become absolute and matured and will own property which has a fair saleable value greater than the amounts required to pay their respective debts (including a reasonable estimate of the amount of all contingent liabilities).