Common use of Financing; Solvency Clause in Contracts

Financing; Solvency. (a) Buyer and Parent affirm that it is not a condition to the Closing or to any of their other obligations under this Agreement (including their obligation to consummate the transactions hereunder) that Buyer and Parent or any of their respective Affiliates obtain or receive funds or financing for or related to any of the transactions contemplated hereby or otherwise. Buyer will have available at the Closing the funds necessary to (i) make the payments required hereunder in full in cash (including the repayment in full in cash of all Indebtedness under the Credit Documents), (ii) pay all fees, costs and expenses to be paid by Buyer at the Closing in connection with the transactions contemplated by this Agreement (and Buyer represents that any fees that are due under the Debt Commitment Letter are required to be paid no earlier than the Closing), and (iii) satisfy all other payment obligations at the Closing that may arise in connection with, or may be required in order to consummate, the transactions contemplated by this Agreement. (b) Buyer has provided the Seller Representative with a true and complete copy of the executed Debt Commitment Letter and any related fee letters (redacted as to economic terms and other commercially sensitive numbers and terms specified in any such fee letter (including any such terms and numbers relating to “flex” terms or similar concepts), none of which redacted provisions could affect the availability, conditionality, enforceability, termination or aggregate principal amount of the Debt Financing at the Closing). The Debt Commitment Letter has not been amended or modified in any manner prior to the date of this Agreement. As of the date of this Agreement, (i) neither Buyer nor any of its Affiliates has entered into any Contract relating to the financing of the transactions contemplated by this Agreement that could reasonably be expected to adversely affect the availability of the Debt Financing on the Closing Date, other than as described in the Debt Commitment Letter and the related fee letter and the engagement letter in respect of the contemplated 144A high yield notes offering by Buyer or a Subsidiary thereof, (ii) the commitments contained in the Debt Commitment Letter have not been withdrawn or rescinded in any respect, and (iii) the Debt Commitment Letter is in full force and effect and represents a valid, binding and enforceable obligation of Buyer and to the Knowledge of Buyer, each other party thereto, subject to the qualification that such enforceability may be limited by bankruptcy, insolvency, reorganization or other Laws of general application relating to or affecting rights of creditors and that equitable remedies, including specific performance, are discretionary and may not be ordered. Buyer has fully paid (or caused to be paid) any and all commitment and/or other fees and other amounts that are due and payable on or prior to the date of this Agreement in respect of the Debt Financing (including pursuant to the Debt Commitment Letter). As of the date of this Agreement, (A) assuming the accuracy of the representations and warranties set forth in Section 3 such that the condition set forth in Section 10.1(a) is satisfied, no event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default on the part of Buyer or, to the Knowledge of Buyer, any other party thereto under the Debt Commitment Letter and (B) assuming the satisfaction of the conditions set forth in Section 8 and Section 9 of this Agreement, Buyer has no reason to believe that it or any other party thereto will be unable to satisfy on a timely basis its obligations under the Debt Commitment Letter. There are no conditions precedent related to the funding of the full amount of the Debt Financing, other than those expressly set forth in Section 5, or Exhibit C, of the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 8 and Section 9 of this Agreement, as of the date of this Agreement, Buyer has no reason to believe that if Buyer’s contemplated 144A high yield notes offering does not occur or is unsuccessful (i) any of the conditions set forth in the Debt Commitment Letter will not be satisfied or (ii) the Debt Financing will not be available (or made available) to Buyer on the Closing Date. As of the date hereof, no Debt Financing Source has notified Buyer of such Debt Financing Source’s intention to terminate or withdraw any of the Debt Financing. (c) As of the Closing, after giving effect to all of the transactions contemplated by this Agreement, and assuming the conditions set forth in Section 9.1 have been satisfied (without regard to any materiality, Material Adverse Effect, knowledge or similar qualifiers), Buyer and Parent will be Solvent. For purposes of this Section 6.7, “Solvent” means that, with respect to any Person and as of any date of determination, (i) the amount of the “present fair saleable value” of the assets of such Person, will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise,” as of such date, as such quoted terms are generally determined in accordance with applicable federal laws governing determinations of the insolvency of debtors, (ii) the present fair saleable value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its indebtedness as its indebtedness becomes absolute and matured, (iii) such Person will have, as of such date, adequate capital with which to conduct its business and (iv) such Person will be able to pay its indebtedness as its indebtedness matures. For purposes of the foregoing definition only, “indebtedness” means a liability in connection with another Person’s (A) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured, or (B) right to any equitable remedy for breach of performance if such breach gives rise to a right of payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured.

Financing; Solvency. (a) Buyer and Parent affirm that it is not a condition has delivered to the Closing or to any of their other obligations under this Agreement (including their obligation to consummate the transactions hereunder) that Buyer and Parent or any of their respective Affiliates obtain or receive funds or financing for or related to any of the transactions contemplated hereby or otherwise. Buyer will have available at the Closing the funds necessary to (i) make the payments required hereunder in full in cash (including the repayment in full in cash of all Indebtedness under the Credit Documents), (ii) pay all fees, costs and expenses to be paid by Buyer at the Closing in connection with the transactions contemplated by this Agreement (and Buyer represents that any fees that are due under the Debt Commitment Letter are required to be paid no earlier than the Closing), and (iii) satisfy all other payment obligations at the Closing that may arise in connection with, or may be required in order to consummate, the transactions contemplated by this Agreement. (b) Buyer has provided the Seller Representative with a true and complete copy of the executed Debt equity commitment letter, dated as of the date hereof, between Buyer and certain affiliates of Buyer (the “Sponsor”) (as may be amended, restated, amended and restated, supplemented or otherwise modified in accordance with the terms hereof, the “Equity Commitment Letter and any related fee letters (redacted as Letter”), pursuant to economic which Sponsor has committed, subject to the terms and other commercially sensitive numbers and terms specified conditions thereof, to invest in any such fee letter Buyer, directly or indirectly, cash amounts (including any such terms and numbers relating the “Financing”) to “flex” terms or similar concepts), none of which redacted provisions could affect the availability, conditionality, enforceability, termination or aggregate principal amount fund all of the Debt Financing amounts required to be provided by Buyer for the consummation of the transactions contemplated hereby, including (i) the Closing Payment pursuant to Section 2.05 of the Purchase Agreement and (ii) to pay the fees and expenses contemplated by the Purchase Agreement, in each case, less any Cash at the ClosingAcquired Companies (collectively, the “Required Funds”). The Debt . (b) Assuming the Financing is funded in accordance with the Equity Commitment Letter has not been amended or modified in any manner prior Letter, the Financing is sufficient to pay the date of this Agreement. Required Funds. (c) As of the date of this Agreementhereof, (i) neither Buyer nor any of its Affiliates has entered into any Contract relating to the financing of the transactions contemplated by this Agreement that could reasonably be expected to adversely affect the availability of the Debt Financing on the Closing Date, other than as described in the Debt Commitment Letter and the related fee letter and the engagement letter in respect of the contemplated 144A high yield notes offering by Buyer or a Subsidiary thereof, (ii) the commitments contained in the Debt Commitment Letter have not been withdrawn or rescinded in any respect, and (iii) the Debt Equity Commitment Letter is in full force and effect and represents has not been withdrawn, terminated or rescinded or otherwise amended, supplemented or modified (or contemplated to be amended, supplemented or modified) in any respect. The Equity Commitment Letter is a validlegal, valid and binding and enforceable obligation of Buyer and the Sponsor, enforceable against such parties in accordance with its terms (except to the Knowledge of Buyer, each other party thereto, subject to the qualification extent that such enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other similar Laws affecting the enforcement of creditors’ rights generally or by general application relating to or affecting rights principles of creditors and that equitable remedies, including specific performance, are discretionary and may not be ordered. Buyer has fully paid (or caused to be paid) any and all commitment and/or other fees and other amounts that are due and payable on or prior to the date of this Agreement in respect of the Debt Financing (including pursuant to the Debt Commitment Letterequity). As of the date of this Agreement, (A) assuming the accuracy of the representations and warranties set forth in Section 3 such that the condition set forth in Section 10.1(a) is satisfied, no event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default on the part of Buyer or, to the Knowledge of Buyer, any other party thereto under the Debt Commitment Letter and (B) assuming the satisfaction of the conditions set forth in Section 8 and Section 9 of this Agreement, Buyer has no reason to believe that it or any other party thereto will be unable to satisfy on a timely basis its obligations under the Debt Commitment Letter. There are no conditions precedent or other contingencies related to the funding or investing, as applicable, of the full amount of the Debt Financing, other than those as expressly set forth in Section 5, or Exhibit C, of the Debt Equity Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 8 and Section 9 of this Agreement, as of the date of this Agreement, Buyer has no reason to believe that if Buyer’s contemplated 144A high yield notes offering does not occur or is unsuccessful (i) any of the conditions set forth in the Debt Commitment Letter will not be satisfied or (ii) the Debt Financing will not be available (or made available) to Buyer on the Closing Date. As of the date hereof, no Debt Financing Source has notified Buyer of such Debt Financing Source’s intention to terminate or withdraw any of the Debt Financing. (cd) As of the Closing, Immediately after giving effect to all of the transactions contemplated by this Agreement, and assuming the conditions set forth in Section 9.1 have been satisfied (without regard to any materiality, Material Adverse Effect, knowledge or similar qualifiers), Buyer and Parent will be Solvent. For purposes of this Section 6.7, “Solvent” means that, with respect to any Person and as of any date of determination, (i) the amount of the “present fair saleable value” of the assets of such Person, will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise,” as of such date, as such quoted terms are generally determined in accordance with applicable federal laws governing determinations of the insolvency of debtors, (ii) the present fair saleable value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its indebtedness as its indebtedness becomes absolute and matured, (iii) such Person will have, as of such date, adequate capital with which to conduct its business and (iv) such Person will each Acquired Company shall be able to pay its indebtedness their respective debts as its indebtedness maturesthey become due and shall own property which has a fair saleable value greater than the amounts required to pay their respective debts as they come due. For purposes Buyer is not entering into the transactions contemplated by this Agreement with the intent to hinder, delay or defraud either present or future creditors of Buyer, the foregoing definition onlyBusiness, “indebtedness” means a liability in connection with another Person’s (A) right to payment, whether any Acquired Company or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured, or (B) right to any equitable remedy for breach of performance if such breach gives rise to a right of payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecuredAffiliates thereof.