Common use of Sufficient Financing Clause in Contracts

Sufficient Financing. The Offeror, following the closing of the Equity Sale, will have and will maintain through the Closing sufficient finances available (including finances available under any Replacement Financing) to complete the Tender Offer, and will finance the Tender Offer through cash on its balance sheet and proceeds of the Equity Sale and any Replacement Financing, and no other third party financing is required by the Offeror to complete the Tender Offer and subsequent acquisition (including compulsory redemption) of any remaining Shares and Outstanding Equity Instruments. Concurrently with the Offeror’s entry into this Agreement, the Offeror has entered into a purchase agreement (the “Equity Purchase Agreement”) with ▇.▇. ▇▇▇▇▇▇ Securities LLC (the “Purchaser”) pursuant to which the Purchaser has committed to purchase $75,000,000 of shares of common stock, par value $0.001, of the Offeror (the “Equity Sale”). The Offeror has delivered to the Company a true and complete copy of the form of Equity Purchase Agreement and will promptly deliver to the Company a true and complete copy of the executed Equity Purchase Agreement. There are no side letters (other than engagement or related letters (none of which contain terms that would reasonably be expected to adversely affect the amount or closing of the Equity Sale)) related to the Equity Sale. As of its signing on the date hereof, (i) the Equity Purchase Agreement is a valid and binding obligation of the Offeror and, to the knowledge of the Offeror, the Purchaser, and (ii) no event has occurred which would constitute a default (or an event which with notice or lapse of time or both would constitute a default), or the failure of any condition, on the part of the Offeror or, to the knowledge of the Offeror, the Purchaser under the Equity Purchase Agreement. There are no conditions precedent to the closing of the Equity Sale and receipt by the Offeror of the net proceeds of the Equity Sale other than the conditions precedent set forth in the Equity Purchase Agreement, and the Offeror has no reason to believe that it will not be able to satisfy any closingcondition in the Equity Purchase Agreement or that the full amount of net proceeds of the Equity Sale will not be paid to the Offeror on or before January 26, 2016. The Offeror acknowledges and agrees that notwithstanding anything to the contrary in this Agreement, the closing of the Equity Sale or any Replacement Financing shall not be a condition to the obligation of the Offeror to consummate the Tender Offer and the other transactions contemplated hereby.

Sufficient Financing. The Offeror, following the closing of the Equity Sale, will have and will maintain through the Closing sufficient finances available (including finances available under any Replacement Financing) to complete the Tender Offer, and will finance the Tender Offer through cash on its balance sheet and proceeds of the Equity Sale and any Replacement Financing, and no other third party financing is required by the Offeror to complete the Tender Offer and subsequent acquisition (including compulsory redemption) of any remaining Shares and Outstanding Equity Instruments. Concurrently with the Offeror’s entry into this Agreement, the Offeror has entered into a purchase agreement (the “Equity Purchase Agreement”) with ▇.▇. ▇▇▇▇▇▇ Securities LLC (the “Purchaser”) pursuant to which the Purchaser has committed to purchase $75,000,000 of shares of common stock, par value $0.001, of the Offeror (the “Equity Sale”). The Offeror has delivered to the Company a true and complete copy of the form of Equity Purchase Agreement and will promptly deliver to the Company a true and complete copy of the executed Equity Purchase Agreement. There are no side letters (other than engagement or related letters (none of which contain terms that would reasonably be expected to adversely affect the amount or closing of the Equity Sale)) related to the Equity Sale. As of its signing on the date hereof, (i) the Equity Purchase Agreement is a valid and binding obligation of the Offeror and, to the knowledge of the Offeror, the Purchaser, and (ii) no event has occurred which would constitute a default (or an event which with notice or lapse of time or both would constitute a default), or the failure of any condition, on the part of the Offeror or, to the knowledge of the Offeror, the Purchaser under the Equity Purchase Agreement. There are no conditions precedent to the closing of the Equity Sale and receipt by the Offeror of the net proceeds of the Equity Sale other than the conditions precedent set forth in the Equity Purchase Agreement, and the Offeror has no reason to believe that it will not be able to satisfy any closingcondition closing condition in the Equity Purchase Agreement or that the full amount of net proceeds of the Equity Sale will not be paid to the Offeror on or before January 26, 2016. The Offeror acknowledges and agrees that notwithstanding anything to the contrary in this Agreement, the closing of the Equity Sale or any Replacement Financing shall not be a condition to the obligation of the Offeror to consummate the Tender Offer and the other transactions contemplated hereby.

Sufficient Financing. The OfferorBuyer has delivered to Seller true, following the closing complete and correct copies of the Equity Sale, will have and will maintain through the Closing sufficient finances available (including finances available under any Replacement Financinga) to complete the Tender Offer, and will finance the Tender Offer through cash on its balance sheet and proceeds of the Equity Sale and any Replacement Financing, and no other third party financing is required by the Offeror to complete the Tender Offer and subsequent acquisition (including compulsory redemption) of any remaining Shares and Outstanding Equity Instruments. Concurrently with the Offeror’s entry into this Agreement, the Offeror has entered into a purchase agreement an executed equity commitment letter (the “Equity Purchase AgreementCommitment Letter”), dated as of the date hereof, by and between the Investors named therein (collectively, “Equity Sponsor”) and Buyer pursuant to which Equity Sponsor has, among other things, and subject to the terms and conditions thereof, committed to provide the amount set forth therein to Buyer in connection with ▇.▇. ▇▇▇▇▇▇ Securities LLC the Closing (the “PurchaserEquity Financing”, and together with the Debt Financings, the “Financing”), (b) the ABL Commitment Letter, pursuant to which the Purchaser has ABL Financing Sources party thereto have committed to purchase $75,000,000 of shares of common stockprovide the ABL Financing to Buyer, par value $0.001(c) the Shell Commitment Letter (together with the Equity Commitment Letter and the ABL Commitment Letter, of the Offeror (the “Equity SaleCommitment Letters”), pursuant to which the Shell Financing Sources party thereto have committed to provide the Shell Financing to Buyer, and (d) the fee letter related to the ABL Commitment Letter with only fee and certain other economic and “flex” terms redacted (as the same may be amended or modified to the extent permitted hereunder, the “Redacted Fee Letter”). The Offeror has delivered Assuming the Financing is funded in accordance with the terms and conditions of the Commitment Letters (including after giving effect to any “flex” provisions in the Redacted Fee Letter), the aggregate proceeds to be disbursed pursuant to the Company a true and complete copy Commitment Letters, are sufficient as of the form of Equity Purchase Agreement and will promptly deliver Closing Date to allow Buyer to consummate the Closing (including with respect to the Company a true and complete copy payment of the executed Equity Closing Purchase Agreement. There are no side letters (other than engagement or related letters (none of which contain terms that would reasonably be expected Price in accordance with Section 2.2), to adversely affect the amount or closing provide credit support to certain of the Equity SaleCompany’s counterparties, to pay related fees and expenses and to make all other payments contemplated herein to be made by Buyer at the Closing (collectively, the “Financing Purposes”)) related to the Equity Sale. As of its signing on the date hereofof this Agreement, (i) each Commitment Letter is in full force and effect and is the Equity Purchase Agreement is a valid and binding obligation of the Offeror Buyer and, to Buyer’s knowledge, the knowledge other parties thereto, subject to applicable bankruptcy, reorganization, insolvency, moratorium or other similar Applicable Laws affecting creditors’ rights generally and general principles of equitable relief. As of the Offerordate of this Agreement, no Commitment Letter has been amended or otherwise modified in any respect. Except for any customary non-disclosure agreements that do not impact the Purchaserconditionality, and (ii) enforceability, availability or aggregate amount of the Debt Financings, as of the date hereof, there are no side letters or other contractual obligations or arrangements that could affect the availability of the Debt Financings, other than as expressly set forth in each Debt Commitment Letter. As of the date of this Agreement, no event has occurred which that would constitute a default (or an event which with notice or lapse of time or both would constitute a default), or the failure of any condition, breach under either Debt Commitment Letter on the part of the Offeror Buyer, or, to the knowledge Buyer’s knowledge, the other parties thereto. As of the Offerordate of this Agreement, the Purchaser under commitment contained in each Debt Commitment Letter has not been terminated, reduced, withdrawn or rescinded in any respect and no such termination, reduction, withdrawal or rescission is contemplated by Buyer or, to Buyer’s knowledge, the Equity Purchase other parties thereto. Buyer has paid in full any and all commitment fees or other fees, costs and expenses and amounts in connection with each Debt Commitment Letter that are payable on or prior to the date of this Agreement. There are no conditions precedent or other contingencies related to the closing funding of the Equity Sale and receipt by the Offeror full amount (or any portion) of the net proceeds Debt Financings, including any condition or other contingency relating to the availability of the Equity Sale Debt Financings pursuant to any “flex” provision, other than the conditions precedent as expressly set forth in the Equity Purchase Debt Commitment Letters or the Redacted Fee Letter. As of the date of this Agreement, and assuming satisfaction or waiver of the Offeror has conditions in Section 5.2, and assuming no material breach by Seller and the Company of their respective representations and warranties and obligations hereunder, Buyer does not have any reason to believe that it any of the conditions to the Debt Financings will not be able to satisfy any closingcondition in the Equity Purchase Agreement satisfied by Buyer on a timely basis or that the full amount of net proceeds of the Equity Sale Debt Financings will not be paid to available in full at the Offeror on or before January 26, 2016Closing. The Offeror acknowledges and agrees that notwithstanding Notwithstanding anything to the contrary in this Agreementcontained herein, the closing Parties agree that (a) Buyer (or a direct or indirect parent company thereof) may, at the option of the Buyer Guarantor, obtain financing up to the amount of the Equity Sale Financing as a replacement of all or any Replacement part of the Equity Financing in the form of loans and/or notes (the “Buyer Financing”), the proceeds of which, at the option of the Buyer Guarantor, may constitute a portion of the Closing Purchase Price to be contributed to the Company on or prior to the Closing Date and (b) a breach of this representation and warranty shall not be result in the failure of a condition precedent to Seller’s obligations under this Agreement on the Closing Date to the obligation of extent the Offeror Closing occurs and Buyer is otherwise able to consummate satisfy its obligations set forth in this Agreement in accordance with the Tender Offer and the other transactions contemplated herebyterms hereof.