Common use of Purchaser Financing Clause in Contracts

Purchaser Financing. (1) The Purchaser has delivered to the Company a true, complete and accurate copy of the executed commitment letter, dated as of the date hereof, among the Purchaser, Compass Bank d/b/a BBVA Compass and BBVA Securities Inc. (the “Commitment Letter”), pursuant to which each lender party thereto has committed to lend, subject to the terms and conditions set forth therein, the amounts set forth therein to the Purchaser (the “Purchaser Financing”) for, among other things, the purpose of financing the transactions contemplated by this Agreement. The Purchaser shall, and shall cause each of its Affiliates to, use commercially reasonable efforts to complete the Purchaser Financing on the terms and conditions described in the Commitment Letter, and shall not permit, without the prior written consent of the Sellers’ Representative, any amendment or modification to be made to, or any waiver or release of any provision or remedy to be made under, the Commitment Letter or any definitive agreement or documentation in connection therewith if such amendment, modification, waiver or release would: (a) reduce the aggregate amount of the Purchaser Financing; (b) impose new or additional conditions precedent to the availability of the Purchaser Financing; or (c) otherwise be reasonably expected to impair, prevent or materially delay the consummation of the Purchaser Financing or the consummation of the transactions contemplated by this Agreement or adversely impact the ability of the Purchaser to enforce its rights against the other parties to the Commitment Letter or any definitive agreements or documentation with respect thereto. The Purchaser may amend the Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter as of the date hereof. The Purchaser shall not release or consent to the termination of the obligations of the lenders under the Commitment Letter, except for assignments and replacements of an individual lender under the terms of, and only in connection with, the syndication of the Purchaser Financing pursuant to the Commitment Letter.

Purchaser Financing. (1) The At the Closing, Purchaser has delivered will have sufficient cash available to it to pay the Aggregate Purchase Price and Change of Control Payments that will be due and payable at the Closing. Purchaser shall use its commercially reasonable best efforts to obtain and implement all necessary financing and Structural Assumptions set forth in the Financing Schedule with such changes as Purchaser may desire, in order to have available to it the Aggregate Purchase Price and such Change of Control Payments at or prior to the Company a trueClosing; provided, complete and accurate copy of the executed commitment letterhowever, dated as of the date hereof, among the Purchaser, Compass Bank d/b/a BBVA Compass and BBVA Securities Inc. (the “Commitment Letter”), pursuant to which each lender party thereto has committed to lend, subject to the terms and conditions set forth therein, the amounts set forth therein to the that in no event will Purchaser (the “Purchaser Financing”) for, among other things, the purpose of financing the transactions contemplated by this Agreement. The Purchaser shall, and shall cause each of its Affiliates to, use commercially reasonable efforts to complete the Purchaser Financing on the terms and conditions described make any changes in the Commitment Letter, and shall not permit, without the prior written consent of the Sellers’ Representative, any amendment or modification to be made to, or any waiver or release of any provision or remedy to be made under, the Commitment Letter or any definitive agreement or documentation in connection therewith if such amendment, modification, waiver or release would: (a) reduce the aggregate amount of the Purchaser Financing; (b) impose new or additional conditions precedent to the availability of the Purchaser Financing; or (c) otherwise Structural Assumptions that would be reasonably expected to impair, prevent or materially delay have a material adverse effect on the solvency of the Company upon the consummation of the Merger, the Subsequent Transactions and the other transactions contemplated herein, provided further, however, that notwithstanding the foregoing, so long as Purchaser Financing obtains and tenders to the Company the Aggregate Purchase Price and such Change of Control Payments on or prior to the consummation End Date, Purchaser shall not be in breach of this covenant. In connection with the foregoing, Purchaser is seeking, from one or more reputable financial institutions, a financing commitment for the transactions contemplated by this Agreement or adversely impact the ability hereby containing customary terms for financing transactions of the Purchaser to enforce its rights against the other parties a similar size and nature to the transaction contemplated herein (the "Debt Commitment Letter"), predicated on Purchaser's commitment to provide the Equity Commitment. Purchaser has requested a reputable investment banking organization to issue a Debt Commitment Letter or any definitive agreements or documentation with respect thereto. The Purchaser may amend the Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter as of within forty (40) days after the date hereof. The Notwithstanding the foregoing, the failure to obtain the Debt Commitment Letter shall not, in and of itself, be a breach of this Agreement by Purchaser and shall not, in and of itself, give the Company any right to terminate this Agreement or to exercise any other remedy prior to the End Date. No later than the later of (a) three business days prior to the date initially scheduled for the Company Stockholders Meeting and (b) eight (8) days prior to the Closing, Purchaser shall deliver to, or make available for review by, the Company copies of the definitive documentation required to implement each of the Structural Assumptions (collectively, the "Structural Documents") and thereafter through the Effective Time Purchaser shall not release make any material changes or consent supplements to the termination or waivers of any provisions of the obligations of the lenders under the Commitment Letter, except for assignments and replacements of an individual lender under the terms of, and only in connection with, the syndication of the Purchaser Financing pursuant to the Commitment LetterStructural Assumptions or Structural Documents.

Purchaser Financing. (1) The Purchaser has delivered assumes full responsibility to obtain the funds required for settlement, and Purchaser’s acquisition of such funds shall not be a contingency to the Company a true, complete Closing. Notwithstanding the foregoing to the contrary and accurate copy provided that (a) Purchaser fully complies with its obligations under this Contract (including this Section 4.7) and the requirements of the executed commitment letterAssumed Deed of Trust (including, dated without limitation, Section 21 thereof) in connection with obtaining the Loan Assumption and Release, (b) Purchaser uses commercially reasonable efforts to obtain the Loan Assumption and Release, as set forth in Section 4.5, and (c) Purchaser does not obtain the written approval of the date hereof, among Lender to the Purchaser, Compass Bank d/b/a BBVA Compass Loan Assumption and BBVA Securities Inc. Release within 60 days after the Effective Date (the “Commitment LetterLoan Approval Period”), pursuant then Purchaser shall have the right to give Escrow Agent notice terminating this Contract (the “Loan Assumption Approval Termination”) on or before the expiration of the Loan Approval Period, in which each lender party thereto has committed to lendevent this Contract shall be of no further force and effect, subject to and except for Purchaser’s liability pursuant to Section 3.3 and any other provision of this Contract which survives such termination, and Escrow Agent shall forthwith return the Deposit to Purchaser. Provided that Purchaser is not in default under the terms of this Contract, Purchaser shall be permitted a one-time 30-day extension of the Loan Approval Period specified above for the sole purpose of obtaining the Loan Assumption and Release by (i) delivering written notice to Seller no later than 5 days prior to the expiration of the Loan Approval Period, and (ii) simultaneously with such notice to Seller, delivering to Escrow Agent the amount of $50,000.00, which amount when received by Escrow Agent shall be added to the Deposit hereunder, shall be non-refundable (except as otherwise expressly provided herein with respect to the Deposit), and shall be held, credited and disbursed in the same manner as provided hereunder with respect to the Deposit. Purchaser shall also have the right to review and approve, in Purchaser’s sole and absolute discretion, prior to the expiration of the Loan Approval Period, (i) the terms and conditions set forth thereinof the Loan and the Assumed Loan Documents including, the amounts set forth therein to the Purchaser without limitation, any deletion or modification of any specific AIMCO Provisions, (the “Purchaser Financing”ii) for, among other things, the purpose of financing the transactions contemplated by this Agreement. The Purchaser shall, and shall cause each of its Affiliates to, use commercially reasonable efforts to complete the Purchaser Financing on the terms and conditions described imposed by Lender to assume the Assumed Loan Documents, including, without limitation, any modifications to the Assumed Loan Documents proposed by Lender as a condition to the Loan Assumption and Release and/or any modifications to the Assumed Loan Documents requested by the Purchaser as a condition to the Loan Assumption and Release that are rejected by the Lender; and (iii) the form of the documents evidencing the Loan Assumption and Release. If Purchaser fails to provide Seller with written notice of termination prior to the expiration of the Loan Approval Period (as the same may be extended) in strict accordance with the Commitment Letternotice provisions of this Contract, Purchaser’s right to terminate under this Section 4.7 shall be permanently waived, this Contract shall remain in full force and effect, the Deposit shall be non-refundable, and Purchaser’s obligation to obtain the Lender’s approval of the Loan Assumption and Release and to purchase the Property shall be non-contingent and unconditional except only for satisfaction of the conditions expressly stated in Section 8.1. Purchaser recognizes and agrees that if the Loan Approval Period expires and Purchaser does not terminate this Contract, the Loan Assumption and Release shall not permitbe a condition to Purchaser’s obligation to close, without and, if the prior written consent of Loan Assumption and Release is not obtained and the Sellers’ RepresentativeClosing has not occurred on or before the Closing Date other than due to a default by Seller, any amendment or modification to be made to, or any waiver or release of any provision or remedy to be made under, the Commitment Letter or any definitive agreement or documentation in connection therewith if such amendment, modification, waiver or release would: (a) reduce the aggregate amount of the Purchaser Financing; (b) impose new or additional conditions precedent to the availability of the Purchaser Financing; or (c) otherwise be reasonably expected to impair, prevent or materially delay the consummation of the Purchaser Financing or the consummation of the transactions contemplated by this Agreement or adversely impact the ability of the Purchaser to enforce its rights against the other parties to the Commitment Letter or any definitive agreements or documentation with respect thereto. The Purchaser may amend the Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter as of the date hereof. The Purchaser shall not release or consent be in default under this Contract, entitling the Seller to terminate this Contract, in which event the termination Deposit shall be immediately released to Seller by the Escrow Agent and this Contract shall be of the obligations of the lenders under the Commitment Letterno further force and effect, subject to and except for assignments and replacements of an individual lender under the terms of, and only in connection with, the syndication of the Purchaser Financing Purchaser’s liability pursuant to the Commitment LetterSection 3.3 and any other provision of this Contract which survives such termination.

Purchaser Financing. (1a) The Purchaser has delivered Subject to the Company a trueterms and conditions of this Agreement, complete the Purchaser shall use its reasonable best efforts to take, or cause to be taken, all actions and accurate copy of to do, or cause to be done, all things necessary, proper or advisable to obtain or cause to be obtained the executed commitment letter, dated as of Debt Financing on or prior to the date hereof, among the Purchaser, Compass Bank d/b/a BBVA Compass and BBVA Securities Inc. (the “Commitment Letter”), pursuant to which each lender party thereto has committed to lend, subject to Closing Date on the terms and conditions set forth thereinin the Debt Commitment Letter and the Fee Letter, including using its reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (ii) negotiate and execute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any "flex" provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, the amounts Financing Conditions that are within the Purchaser's control (but excluding any condition where the failure to be so satisfied is a direct result of the Company's failure to furnish information as required under Section 8.09 or the Company's or the Sellers' breach of any of their respective other obligations under this Agreement); (iv) subject to the terms of the Debt Commitment Letter and upon the satisfaction of the Financing Conditions, enforce its rights to consummate the Debt Financing or to cause the Debt Financing Sources and the other persons committing to fund the Debt Financing to fund the Debt Financing at the Closing under the Debt Commitment Letter; and (v) upon satisfaction of the conditions set forth therein in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Purchaser (Closing, including using its reasonable best efforts to cause the “Purchaser Financing”) for, among Debt Financing Sources and the other things, persons committing to fund the purpose of financing Debt Financing to fund the transactions contemplated by this AgreementDebt Financing at the Closing. The Purchaser shall, and shall cause each of its Affiliates to, use commercially reasonable efforts to complete the Purchaser Financing on the terms and conditions described in the Commitment Letter, and shall not permitpermit or agree to any termination, without the prior written consent of the Sellers’ Representative, any amendment or modification to be made to, or any waiver or release of any provision or remedy to be made under, or any replacement of, any of the Debt Commitment Letter or any definitive agreement or documentation in connection therewith if such termination, amendment, modification, waiver or release would: replacement (aA) reduce reduces (or would have the effect of reducing) the aggregate amount of the Purchaser FinancingDebt Financing (including by increasing the amount of fees to be paid or original issue discount), unless the representation and warranty set forth in Section 7.09(a) hereof (as though made at the time of the effectuation of such termination, amendment, modification, waiver or replacement) shall remain true and correct; or (bB) impose imposes new or additional conditions precedent or otherwise expands, amends or modifies any of the conditions to the availability receipt of Debt Financing, or otherwise expands, amends or modifies any other provision of the Purchaser Financing; Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding of the Debt Financing (or satisfaction of the Debt Financing Conditions that are in the Purchaser's control) on the Closing Date or (cy) otherwise be reasonably expected to impair, prevent or materially delay the consummation of the Purchaser Financing or the consummation of the transactions contemplated by this Agreement or adversely impact the ability of the Purchaser to enforce its rights against the other parties to the Debt Commitment Letter or any the definitive agreements or documentation with respect thereto. The Purchaser may amend ; provided that (i) the Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter as of the date hereof. The Purchaser shall not release or consent be deemed to have violated this Section 9.07 if the Purchaser shall have (A) provided prior written notice to the termination Representative of any termination, amendment, modification, waiver or replacement it proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 9.07 and (B) demonstrated (to the reasonable satisfaction of the obligations of Representative) that it has other funds available to it (on conditions not materially less favorable in the lenders under aggregate to the Commitment Letter, except for assignments Purchaser than the Financing Conditions) that are sufficient to pay all amounts required to be paid by Purchaser pursuant to this Agreement and replacements of an individual lender under in connection with the terms oftransactions contemplated by 45 this Agreement, and only (ii) for the avoidance of doubt, neither the existence nor the exercise of any "flex" provision in connection withthe Debt Commitment Letter shall constitute a breach of this provision. Purchaser shall promptly deliver to the Representative copies of any such termination, the syndication of amendment, modification, waiver or replacement. In no event shall the Purchaser Financing pursuant to have any liability for breach of its covenants or agreements in this Section 9.07 if the Commitment LetterClosing occurs.

Purchaser Financing. (1a) The Purchaser has delivered to the Company a true, complete and accurate copy of the executed commitment letter, dated as of the date hereof, among the Purchaser, Compass Bank d/b/a BBVA Compass and BBVA Securities Inc. (the “Commitment Letter”), pursuant to which each lender party thereto has committed to lend, subject to the terms and conditions set forth therein, the amounts set forth therein to the Purchaser (the “Purchaser Financing”) for, among other things, the purpose of financing the transactions contemplated by this Agreement. The Purchaser shall, and shall cause each of its Affiliates to, use commercially reasonable best efforts to complete take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain the Purchaser Financing on the terms and subject to the conditions described in or contemplated by the Financing Commitment Letters, including using its reasonable best efforts to: (i) maintain in full force and effect the Financing Commitments, (ii) satisfy on or prior to the Closing Date all conditions to funding applicable to Purchaser in the Debt Commitment Letter and/or the definitive agreements with respect thereto (the “Debt Financing Documents” and, together with the definitive agreements for the Equity Financing, collectively, the “Financing Documents”) (including by consummating the Equity Financing at or prior to Closing), (iii) negotiate and enter into the Debt Financing Documents prior to the Closing Date on the terms and subject to the conditions described in the Commitment Letter, and shall not permit, without the prior written consent of the Sellers’ Representative, any amendment or modification to be made to, or any waiver or release of any provision or remedy to be made under, the Debt Commitment Letter (including any “market flex” provisions contained therein) or any definitive agreement or documentation in connection therewith if such amendment, modification, waiver or release would: otherwise on terms that would not (aA) reduce the aggregate amount of the Debt Financing below the amount necessary for Purchaser Financing; to pay the Required Funds or (bB) impose new or additional material conditions precedent to the availability receipt of the Purchaser Debt Financing; or , in the case of this clause (c) otherwise B), that would reasonably be reasonably expected to impairdelay or prevent Closing, (iv) consummate the Debt Financing on or prior to the Closing Date (it being understood that it is not a condition to Closing under this Agreement for Purchaser to obtain the Debt Financing or any Alternative Financing) and (v) enforcing its rights under the Debt Financing Commitments (other than through litigation). Purchaser shall obtain the Equity Financing contemplated by the Equity Financing Commitment upon satisfaction or waiver of the conditions to Closing in Section 2.2 and Section 2.3 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing). To the extent requested by Seller from time to time, Purchaser shall keep Seller informed on a reasonably current basis of any material developments in respect of the status of the conditions precedent to the funding of, or availability of, the Debt Financing (or Alternative Financing), and upon reasonable request, Purchaser shall provide to Seller copies of all material documents related to the Financing (or Alternative Financing) or any other document related to the Financing (or Alternative Financing) affecting any rights or obligations of Seller or its Affiliates (if any). In the event any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (after taking into account the “market flex” provisions thereof) such that the aggregate Debt Financing that is available, when taken together with the Purchaser’s existing cash on hand and the aggregate amount of Equity Financing, is insufficient to satisfy the Required Funds, Purchaser shall, as promptly and practicable following the occurrence of such event, use reasonable best efforts to obtain alternative financing, including from alternative sources, that provides for financing (A) on terms that are not materially less favorable (including with respect to “market flex” provisions and conditions to the availability and funding of the Debt Financing), in the aggregate to Purchaser than the terms and conditions set forth in the Debt Commitment Letter (the “Alternative Financing”), (B) in an amount, when added with Purchaser’s existing cash on hand, the Equity Financing Commitments and any portion of the Debt Financing Commitments that are available, that is not less than the Required Funds and (C) which would not (x) involve any new or additional conditions to funding the Debt Financing that would not reasonably be expected to delay or prevent the Closing and (y) reasonably be expected to prevent, impede or materially delay the consummation of the Purchaser Debt Financing or such Alternative Financing or the consummation of the transactions Transactions contemplated by this Agreement or adversely impact Agreement. Without limiting the ability generality of the foregoing, Purchaser shall reasonably promptly notify Seller in writing (i) if there exists any material breach, default, legal repudiation, cancellation or termination by any party to enforce its rights against any Financing Commitment Letter of which the Purchaser becomes aware, which material breach, default, legal repudiation, cancellation or termination would reasonably be expected to adversely affect the conditions to, availability of or amount of the applicable Financing, (ii) of the receipt by Purchaser of any written notice or other written communication from the Sponsor or any Debt Financing Source with respect to any actual breach, default, cancellation or termination by such Sponsor, the parties to the Equity Commitment Letter or any definitive agreements Debt Financing Source or documentation with respect thereto. The (iii) if for any reason Purchaser may amend the Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities Sponsors believes in good faith that have not executed the Commitment Letter as there is a reasonable possibility that all or any portion of the date hereof. The Purchaser shall not release or consent to Financing will be unavailable on the termination of the obligations of the lenders under the Commitment Letter, except for assignments and replacements of an individual lender under the terms of, and only in connection with, the syndication of the Purchaser Financing pursuant to the Commitment Letter.Closing Date;

Purchaser Financing. (1a) The Purchaser has delivered to the Company a true, complete and accurate copy of the executed commitment letter, dated as of the date hereof, among the Purchaser, Compass Bank d/b/a BBVA Compass and BBVA Securities Inc. (the “Commitment Letter”), pursuant to which each lender party thereto has committed to lend, subject to the terms and conditions set forth therein, the amounts set forth therein to the Purchaser (the “Purchaser Financing”) for, among other things, the purpose of financing the transactions contemplated by this Agreement. The Purchaser shall, and shall cause each of use its Affiliates to, use commercially reasonable best efforts to complete arrange, obtain and consummate the Purchaser Financing on the terms and conditions described in or contemplated by the Commitment LetterFinancing Commitments (including complying with any request exercising so-called “flex” provisions contained therein), as promptly as practicable after the date hereof (taking into account the timing of the Marketing Period), including using reasonable best efforts to (i) maintain in full force and effect the Financing Commitments, (ii) satisfy on a timely basis (taking into account the timing of the Marketing Period) (or obtain the waiver of) all conditions to funding in the Debt Financing Commitments and such definitive agreements to be entered into pursuant thereto (including by consummating the Equity Financing at or prior to the Closing) applicable to Purchaser, and (iii) negotiate and enter into definitive agreements with respect thereto on terms and conditions described in the Debt Financing Commitments (including any “flex” provisions contained therein) on or prior to the Closing Date (other than modifications to such terms and conditions as are acceptable to Purchaser so long as such modifications would (x) not reasonably be expected to materially delay (taking into account the expected timing of the Marketing Period) or prevent the ability of Purchaser to consummate the transactions contemplated hereby or cause the amount of the Debt Financing, when added with the funds to be provided under the Equity Financing Commitment, to be less than an amount sufficient to consummate the Transaction and (y) otherwise be permitted under the restrictions on amendments and modifications otherwise set forth in this Section 6.10). Purchaser shall, and shall cause its controlled Affiliates to, obtain the Equity Financing contemplated by the Equity Financing Commitment upon satisfaction or waiver of the conditions to Closing in Section 7.1 and Section 7.2 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing). Purchaser shall keep Seller informed on a reasonably current basis of the status of its efforts to arrange the Financing (or Alternative Financing). For the avoidance of doubt, Purchaser shall provide the Company copies of all amendments, modifications or supplements to the Debt Financing Commitments and any fee letter related to the Debt Financing Commitments (provided, that provisions in any amendment, modification or supplement to any fee letter, the fee amounts and the economic terms of market “flex” provisions that are customarily redacted in connection with transactions of this type may be redacted; provided that such redacted terms would not permitin any event adversely affect the availability, conditionality, enforceability or the aggregate amount of the Debt Financing) promptly upon execution thereof. In the event any portion of the Debt Financing becomes unavailable in the amounts and on the conditions (including any “flex” provisions) contemplated in the Debt Financing Commitments for any reason (A) Purchaser shall promptly notify Seller in writing and (B) Purchaser shall use its reasonable best efforts to obtain, as promptly as practicable following the occurrence of such event, alternative financing from alternative financing sources (the “Alternative Financing”) in an amount, when added with the funds to be provided under the Equity Financing Commitment, sufficient to consummate the Transaction, which would (i) involve terms in material respects as favorable to Purchaser as are reasonably available in the debt markets for financing of the type set forth in the Debt Financing Commitments as of the date hereof (including any “flex” provisions applicable thereto), (ii) not involve any additional conditions to funding the Debt Financing that are not contained in the Debt Financing Commitments and (iii) not reasonably be expected to prevent, impede or delay the consummation of the Transaction. The Purchaser shall provide Seller, upon reasonable written request, such information as shall be reasonably necessary to allow Seller to monitor the progress of Purchaser’s efforts to arrange the Debt Financing. Without limiting the generality of the foregoing, Purchaser shall promptly notify Seller in writing (A) if there exists any breach, default, rescission, repudiation, cancellation, expiration or termination by any party to the Financing Commitments or any definitive agreement related thereto (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any breach, default, rescission, repudiation, cancellation, expiration or termination) or (B) of the prior receipt by Purchaser of any written notice or other written communication from any Financing Source with respect to any actual, threatened or alleged material breach, default, rescission, repudiation, cancellation or termination by any party to the Financing Commitments or any definitive document with respect thereto. Without the consent of the Sellers’ RepresentativeCompany, the Purchaser shall not consent or agree to any amendment amendment, replacement, supplement or modification to be made to, or any waiver or release of any provision or remedy to be made under, the Financing Commitment Letter or any the definitive agreement or documentation in connection therewith agreements relation to the Financing if such amendment, modificationreplacement, supplement, modification or waiver or release would: (a1) reduce decreases the aggregate amount of the Purchaser Financing; Financing to an amount that would be less than an amount that would be required to consummate the Transaction on the Closing Date, (b2) impose imposes new or additional conditions precedent to the availability receipt of the Purchaser Financing; , or (c) otherwise expands, amends or modifies any of the conditions to the receipt of the Financing, in a manner that would reasonably be reasonably expected to impairprevent, prevent impede or materially delay the consummation of the Purchaser Financing or the consummation of the transactions contemplated by this Agreement Agreement, or (3) would be reasonably expected to adversely impact the ability of the Purchaser to enforce its rights against the other parties to Financing Sources. Notwithstanding the Commitment Letter or any definitive agreements or documentation with respect thereto. The foregoing, for the avoidance of doubt, Purchaser may amend amend, replace, supplement and/or modify the Commitment Letter Debt Financing Commitments to (a) add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have as parties thereto who had not executed the Commitment Letter Debt Financing Commitments as of the date hereof, (b) amend titles, allocations and fee sharing arrangements with respect to existing and additional Financing Sources and (c) increase the amount of the Debt Financing. The Upon any amendment, supplement, modification, consent or waiver of or relating to the Financing Commitments, Purchaser shall not release or consent promptly provide a copy thereof to Seller and, to the termination of the obligations of the lenders under the Commitment Letterextent any such amendment, except for assignments and replacements of an individual lender under the terms of, and only supplement or modification has been made in connection withcompliance with this Section 6.10(a), the syndication of the Purchaser Financing pursuant to the Commitment Letter.term “

Purchaser Financing. (1a) The Purchaser has delivered shall take, or cause to be taken, all actions and do, or cause to be done, all things necessary, advisable or proper to obtain funds sufficient to fund the Payment Amount on or prior to the Company a true, complete Closing Date. In furtherance and accurate copy not in limitation of the executed commitment letterforegoing, dated as Purchaser shall take, or cause to be taken, all actions and do, or cause to be done, all things necessary, advisable or proper to obtain the proceeds of the date hereof, among the Purchaser, Compass Bank d/b/a BBVA Compass and BBVA Securities Inc. (the “Commitment Letter”), pursuant to which each lender party thereto has committed to lend, subject to the terms and conditions set forth therein, the amounts set forth therein to the Purchaser (the “Purchaser Financing”) for, among other things, the purpose of financing the transactions contemplated by this Agreement. The Purchaser shall, and shall cause each of its Affiliates to, use commercially reasonable efforts to complete the Purchaser Financing on the terms and subject only to the conditions described in the Debt Commitment LetterLetter in an amount sufficient to fund the Payment Amounts as promptly as possible but in any event prior to the Closing Date, including (i) maintaining in effect the Debt Commitment Letter (until the termination thereof in accordance with its terms) and complying with its obligations thereunder, (ii) satisfying on a timely basis, and shall in a manner that will not permit, without impede the prior written consent ability of the Sellers’ RepresentativeParties to consummate the Transaction promptly upon the Closing Date, any amendment or modification all conditions to be made tothe funding of the Financing set forth in the Debt Commitment Letter and (iii) negotiating and entering into definitive agreements with respect to the Financing (the “Definitive Agreements”) consistent with the terms and conditions contained in the Debt Commitment Letter (including, or any waiver or release of any provision or remedy to be made underas necessary, the “flex” provisions contained in any related fee letter). Without limiting the generality of the foregoing, in the event that all conditions contained in the Debt Commitment Letter or any definitive agreement or documentation in connection therewith if such amendment, modification, waiver or release would: the Definitive Agreements (a) reduce the aggregate amount of the Purchaser Financing; (b) impose new or additional conditions precedent to the availability of the Purchaser Financing; or (c) otherwise be reasonably expected to impair, prevent or materially delay other than the consummation of the Transaction, those conditions that by their nature are to be satisfied or waived at Closing and those conditions the failure of which to be satisfied is attributable to a breach by Purchaser of its representations, warranties, covenants or agreements contained in this Agreement) have been satisfied, Purchaser shall cause the Financing Entities to comply with their respective obligations thereunder, including to fund the Financing and to pay related fees and expenses on the Closing Date (including by promptly commencing a litigation proceeding against any breaching Financing Entity or other financial institution to compel such breaching party to provide its portion of the Financing or otherwise comply with its obligations under the consummation of the transactions contemplated by this Agreement or adversely impact the ability of the Purchaser to enforce its rights against the other parties to the Debt Commitment Letter or any definitive agreements or documentation the relevant Definitive Agreement). Purchaser shall comply with respect thereto. The Purchaser may amend its obligations, and enforce its rights, under the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter as of the date hereof. The Purchaser shall not release or consent to the termination of the obligations of the lenders under the Commitment Letter, except for assignments and replacements of an individual lender under the terms of, Definitive Agreements in a timely and only in connection with, the syndication of the Purchaser Financing pursuant to the Commitment Letterdiligent manner.

Purchaser Financing. (1i) The Purchaser has delivered to the Company a true, complete and accurate copy of the executed commitment letter, dated as of the date hereof, among the Purchaser, Compass Bank d/b/a BBVA Compass and BBVA Securities Inc. (the “Commitment Letter”), pursuant to which each lender party thereto has committed to lend, subject Subject to the terms and conditions set forth therein, the amounts set forth therein to the Purchaser (the “Purchaser Financing”) for, among other things, the purpose of financing the transactions contemplated by this Agreement. The , Purchaser shall, and shall cause each of use its Affiliates to, use commercially reasonable best efforts to complete take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or advisable to arrange and obtain the Purchaser Financing on the terms and conditions described in the Commitment LetterLetters or on other terms that would not reduce the amount of proceeds of the Financing below the amount necessary for Purchaser to consummate the Contemplated Transactions on the terms contemplated hereby and would not reasonably be expected to delay the Closing or make funding materially less likely to occur on the Closing Date (including the exercise of so-called “flex” provisions) on or before the Closing (including using reasonable best efforts to (A) satisfy (or obtain the waiver of) all conditions and covenants applicable to Purchaser in the Commitment Letters and such definitive agreements to be entered into pursuant to the Commitment Letters; provided that with respect to any conditions or covenants that are not within the control of Purchaser, the Purchaser shall only be obligated to use commercially reasonable efforts, and shall not permit, without (B) negotiate and enter into definitive agreements with respect to the prior written consent of Financing consistent with the Sellers’ Representative, any amendment or modification to be made to, or any waiver or release of any provision or remedy to be made under, terms and conditions contained in the Commitment Letter or on other terms no less favorable, in the aggregate, to Purchaser than the terms and conditions (including the “flex” provisions) contemplated by the Commitment Letters (or on other terms that would not reasonably be expected to delay the Closing or make funding materially less likely to occur on the Closing Date), other than, in each case, (i) a waiver of any definitive agreement closing conditions by lender(s) or documentation in connection therewith if such amendment, modification, waiver or release would: (a) reduce the aggregate amount of the Purchaser Financing; (b) impose new or additional conditions precedent to the availability of the Purchaser Financing; their agent or (cii) otherwise be reasonably expected to impair, prevent or materially delay the consummation of the Purchaser Financing or the consummation of the transactions contemplated by this Agreement or adversely impact the ability of the Purchaser to enforce its rights against the other parties to the Commitment Letter or any definitive agreements or documentation with respect thereto. The Purchaser may amend the Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have who had not executed the Commitment Letter Letters as of the date hereof or to reassign titles to such parties who had executed the Commitment Letters as of the date hereof. The At the written request of the Company, Purchaser shall provide the Company with such information and material documentation as shall be reasonably requested by the Company. It is understood and agreed that “reasonable best efforts” as used in this Section 4.6 shall not release require Purchaser to obtain alternative financing if such financing, in Purchaser’s reasonable business judgment, is less favorable in the aggregate (including with respect to fees payable by Purchaser or consent its Affiliates thereunder) to Purchaser than the termination of the obligations of the lenders under Financing contemplated in the Commitment Letter, except for assignments and replacements of an individual lender under the terms of, and only in connection with, the syndication of the Purchaser Financing pursuant Letters (including with respect to the Commitment Letterany “flex” provisions).

Purchaser Financing. (1a) The Purchaser has delivered shall use its reasonable best efforts to the Company a true, complete and accurate copy of the executed commitment letter, dated as of the date hereof, among the Purchaser, Compass Bank d/b/a BBVA Compass and BBVA Securities Inc. (the “Commitment Letter”), pursuant to which each lender party thereto has committed to lend, subject to the terms and conditions set forth therein, the amounts set forth therein to the Purchaser (the “Purchaser Financing”) for, among other things, the purpose of financing the transactions contemplated by this Agreement. The Purchaser shalltake, and shall cause each of its Affiliates toto be taken, use commercially reasonable efforts all actions and to complete do, and to cause to be done, all things necessary, proper, or advisable to arrange, consummate and obtain (i) the Purchaser Equity Financing on the terms and conditions described in the Equity Commitment LetterLetter and (ii) the Debt Financing on the terms and conditions described in the Credit Agreement, in each case, on the Closing Date, including (A) using reasonable best efforts to comply with and maintain in full force and effect the Equity Commitment Letter and the Credit Agreement, (B) using reasonable best efforts to timely negotiate and enter into any additional definitive agreements with respect to the Debt Financing on terms and conditions contemplated by the Credit Agreement (any such agreements, collectively with the Credit Agreement, the “Financing Definitive Agreements”), (C) satisfying or causing to be waived on a timely basis (and, in any event, on or prior to Closing) all conditions to funding the Financing that are applicable to the Purchaser in such Equity Commitment Letter and the Financing Definitive Agreements that are within the Purchaser’s control, (D) using reasonable best efforts to consummate the Financing at or prior to the Closing, (E) enforcing the Purchaser’s rights under the Equity Commitment Letter and the Credit Agreement, and (F) if the conditions set forth in Section 2.03 and Section 2.04 have been satisfied or waived (other than those conditions that by their nature are to be satisfied or waived at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing), consummating the Financing at the Closing. The Purchaser shall not permitamend, without the prior written consent of the Sellers’ Representativeamend and restate, any amendment or modification to be made toreplace, supplement, or otherwise modify or waive any waiver or release of any provision or remedy to be made under, its rights under the Equity Commitment Letter or any definitive agreement Financing Definitive Agreement or documentation in connection therewith if substitute other debt or equity financing for all or any portion of the Debt Financing from the same or alternative financing sources; provided that the Purchaser may amend, amend and restate, replace, supplement, or otherwise modify or waive any of its rights under, the Financing Definitive Agreements, so long as any such amendment, modificationreplacement, supplement, or other modification to or waiver or release would: of any provisions of such Financing Definitive Agreements shall not (ai) reduce permit the aggregate amount syndication of the Debt Financing to parties that are not commercial banks and their Affiliates or the Purchaser Financing; or Affiliates of the Purchaser, (bii) impose new or additional expand upon the conditions precedent to the funding on the Closing Date of the Debt Financing as set forth in the Credit Agreement on the date hereof or otherwise modify the Financing Definitive Agreements in a manner that would, or would reasonably be likely to, prevent, impede, or delay the Closing, including in respect of the availability of the Purchaser Debt Financing; , or by releasing or consenting to the termination of any Financing Definitive Agreement prior to the first to occur of Closing and the expiration of the Credit Agreement in accordance with its terms, (ciii) otherwise be reasonably expected reduce the amount of the Debt Financing or reduce the Financing Parties’ commitments under the Credit Agreement (other than as a result of an assignment of a Financing Parties’ commitment to impairanother Financing Party) unless such reduced amount, prevent or materially delay when combined with the consummation Equity Financing (including any increase thereto) is sufficient to satisfy the Purchaser’s obligations, contemplated by this Agreement, including the payment of the Consideration at the Closing and payment of all fees and expenses of the Purchaser Financing due and payable at the Closing, or the consummation of the transactions contemplated by this Agreement or adversely impact (iv) affect the ability of the Purchaser to enforce its rights against the other parties to Financing Parties or the Commitment Letter or any definitive agreements or documentation with respect thereto. The Purchaser may amend the Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter as of the date hereof. The Purchaser shall not release or consent to the termination of the obligations of the lenders Sponsor under the Credit Agreement or the Equity Commitment Letter, except for assignments and replacements of an individual lender under the terms of, and only in connection with, the syndication of the Purchaser Financing pursuant to the Commitment Letterrespectively.

Purchaser Financing. Subject to the Original Agreement (1as modified by this Amendment), Purchaser shall have until the expiration of the Loan Approval Period to either (a) The obtain the Loan Assumption and Release as more particularly provided in Section 4.7 of the Original Agreement or (b) obtain a loan commitment for the New Loan on terms and conditions satisfactory to Purchaser in Purchaser’s sole and absolute discretion, including the form of the documents evidencing the New Loan (the “Loan Commitment”). If Purchaser has delivered timely submitted the Loan Assumption Application as provided in Section 4.5 of the Original Agreement and Section 1 of this Amendment, Purchaser shall have the option to extend the Loan Approval Period as provided in Section 4.7 of the Original Agreement to obtain the Loan Assumption and Release and to approve the other matters contained in Section 4.7 of the Original Agreement if Purchaser has not received the Lender’s written approval of the Loan Assumption and Release prior to the Company a true, complete and accurate copy expiration of the executed commitment letterinitial thirty (30) day Loan Approval Period. If Purchaser has timely submitted the application for a New Loan as provided in Section 1 of this Amendment, dated Purchaser shall have the option to extend the time to obtain the Loan Commitment to the date that is fifteen (15) days after the expiration of the initial thirty (30) day Loan Approval Period if Purchaser has not received a Loan Commitment prior to the expiration of the initial thirty (30) day Loan Approval Period. If Purchaser has pursued both the Loan Assumption and Release and the New Loan in compliance with the Original Agreement (as modified by this Amendment), Purchaser must advise Seller in writing as of the date hereof, among expiration of the Purchaser, Compass Bank d/b/a BBVA Compass and BBVA Securities Inc. time provided under this Section 2 for Purchaser to obtain the New Loan (the “Commitment Letter”), pursuant to which each lender party thereto has committed to lend, subject to the terms and conditions set forth therein, the amounts set forth therein to the Purchaser (the “Purchaser FinancingNew Loan Deadline”) for, among other things, which financing method Purchaser shall use to close the purpose of financing the transactions contemplated by this Agreement. The Purchaser shall, and shall cause each of its Affiliates to, use commercially reasonable efforts to complete the Purchaser Financing on the terms and conditions described in the Commitment Letter, and shall not permit, without the prior written consent purchase of the Sellers’ Representative, any amendment or modification Property. Purchaser’s failure to provide such notice shall be deemed to be made to, Purchaser’s election to close using the New Loan. If Purchaser elects or any waiver or release of any provision or remedy is deemed to be made under, the Commitment Letter or any definitive agreement or documentation in connection therewith if such amendment, modification, waiver or release would: (a) reduce the aggregate amount of the Purchaser Financing; (b) impose new or additional conditions precedent to the availability of the Purchaser Financing; or (c) otherwise be reasonably expected to impair, prevent or materially delay the consummation of the Purchaser Financing or the consummation of the transactions contemplated by this Agreement or adversely impact the ability of the Purchaser to enforce its rights against the other parties to the Commitment Letter or any definitive agreements or documentation with respect thereto. The Purchaser may amend the Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter elected as of the date hereof. The Purchaser shall not release or consent New Loan Deadline to close the purchase of the Property using the New Loan, all provisions of this Amendment and the Original Agreement (as modified by this Amendment) relating to the termination Loan Assumption and Release shall be of no further force or effect and all contingencies relating to the Loan Assumption and Release shall be deemed satisfied and/or waived by Purchaser. If Purchaser elects as of the obligations New Loan Deadline to close the purchase of the lenders under Property using the Commitment LetterLoan Assumption and Release, except for assignments all provisions of this Amendment and replacements of an individual lender under the terms of, and only in connection with, the syndication of the Purchaser Financing pursuant Original Agreement (as modified by this Amendment) relating to the Commitment LetterNew Loan shall be of no further force or effect.

Purchaser Financing. Purchaser shall use its best efforts to obtain financing commitments (1the "Commitment Letters") The Purchaser has delivered on or prior to April 30, 2003, that are reasonably satisfactory to the Company a trueand that provide for an amount sufficient to fund the Cash Payment, complete and accurate copy of pay amounts owed to the executed commitment letter, dated as of Senior Lenders under the date hereof, among the Purchaser, Compass Bank d/b/a BBVA Compass and BBVA Securities Inc. Credit Agreement (the “Commitment Letter”), pursuant to which each lender party thereto has committed to lend, subject giving effect to the terms and conditions set forth therein, the amounts set forth therein to the Purchaser (the “Purchaser Financing”) for, among other things, the purpose of financing the transactions contemplated by this Agreement. The Purchaser shall, and shall cause each of its Affiliates to, use commercially reasonable efforts to complete the Purchaser Financing on the terms and conditions described in the Commitment Letter, and shall not permit, without the prior written consent of the Sellers’ RepresentativeSenior Lender/CGW Agreement), any amendment or modification fund $5 million owed by the Company to be made toXxxxx X. Xxxxxxxxxxx, or any waiver or release Xx., fund up to $8 million of any provision or remedy to be made under, the Commitment Letter or any definitive agreement or documentation in connection therewith if such amendment, modification, waiver or release would: (a) reduce the aggregate amount of the Purchaser Financing; (b) impose new or additional conditions precedent to the availability of the Purchaser Financing; or (c) otherwise be reasonably expected to impair, prevent or materially delay the consummation of the Purchaser Financing or fees associated with the consummation of the transactions contemplated by this Agreement or adversely impact Agreement, and fund up to (euro)10 million to satisfy the ability working capital requirements of the Purchaser to enforce its rights against Company's German business (the other parties to the Commitment Letter or any definitive agreements or documentation with respect thereto. The Purchaser may amend the Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter as of the date hereof"Financing"). The Purchaser shall seek to obtain the Commitment Letters on substantially the same terms contemplated by the Financing Arrangements or shall seek Commitment Letters for alternative financing on terms that are not release materially less favorable from the Financing Arrangements, or consent with lenders substantially similar to those indicated in Section 7.7 as providing the Financing Arrangements, and will use its best efforts to satisfy any conditions to obtaining such Commitment Letters as detailed in the Financing Arrangements. In addition, Purchaser and the Company shall use their reasonable efforts to negotiate and finalize definitive agreements with respect to the termination Financing prior to the mailing of the obligations Proxy Statement, which obligation shall in no way (i) restrict the conditions that may be imposed in such definitive agreements with respect to the closing of such Financing or (ii) alter the lenders under Company's obligation to mail the Proxy Statement to its shareholders at the earliest practicable time. For the avoidance of doubt, obtaining Financing shall not require Purchaser to pay materially greater financing or other fees than as set forth in the Financing Arrangements or require Purchaser to issue any equity to any source of Financing in an amount that is materially more than what is contemplated by the Financing Arrangements. Purchaser shall, for each Commitment Letter, except provide the Company with written notice (each a "Commitment Letter Notice") when the negotiation of such Commitment Letter has been completed and the Purchaser is prepared to accept and execute such Commitment Letter. The Company may request, by written notice (each a "Delay Notice") that the Purchaser delay the acceptance and execution of any Commitment Letter for assignments and replacements of an individual lender under up to 72 hours following the terms of, and only in connection with, receipt by the syndication Purchaser of the Purchaser Financing pursuant related Delay Notice, if the Company believes in good faith that such additional period is reasonably necessary for the Company to adequately consider any Acquisition Proposal, notice of which has been made and delivered to the Purchaser in accordance with this Agreement. The Purchaser agrees to comply with such Delay Notice and refrain from the acceptance and execution of the related Commitment LetterLetter unless such delay would, in the good faith belief of the Purchaser, result in the withdrawal of such Commitment Letter by the lender thereunder, or unless such delay would otherwise cause the Purchaser to breach any of its obligations under this Agreement or would cause any of the conditions in this Agreement not to be met.