Common use of Alternative Financing Clause in Contracts

Alternative Financing. (a) Upon the occurrence of an Investor Default or a Signatory Default, the Lead Investors (other than any Lead Investor whose breach is the cause of such Investor Default or Signatory Default) shall have the right, but shall not be obligated to, within five (5) Business Days after receipt of written notice from the Company to all Lead Investors on behalf of the Investors of such Investor Default or Signatory Default to make arrangements for one or more of such Lead Investors, their Related Purchasers, Ultimate Purchasers or any combination thereof to purchase all or any portion of the Available Investor Shares or Cash Recovery Subscription Equity, as the case may be, on the terms and subject to the conditions set forth in this Agreement and in such amounts as may be agreed upon by such Lead Investors; provided, that if such Lead Investors, Related Purchasers and Ultimate Purchasers do not, in the aggregate, agree to purchase all of the Available Investor Shares or Cash Recovery Subscription Equity, as the case may be, on the terms and subject to the conditions of this Agreement or the Cash Recovery Backstop Agreement, as the case may be, the Co-Investors (other than any Co-Investor whose breach is the cause of such Investor Default or Signatory Default) shall have the right, but shall not be obligated to, within two (2) Business Days after the expiration of such five (5) Business Day period, to make arrangements for one or more of such Co-Investors, their Related Purchasers, Ultimate Purchasers or any combination thereof to purchase all or any portion of the remaining Available Investor Shares or Cash Recovery Subscription Equity, as the case may be, on the terms and subject to the conditions set forth in this Agreement and in such amounts as may be agreed upon by such Co-Investors and any Lead Investors participating in the Alternative Financing (such arrangement pursuant to which all Available Investor Shares or all of the Cash Recovery Subscription Equity, as the case may be, are purchased, an “Alternative Financing”). If an Investor Default or Signatory Default occurs, the Effective Date and the Outside Date shall each be delayed only to the extent necessary to allow for an Alternative Financing to be completed within the time frame established in this Section 3.3(a); provided, that in no event shall the Effective Date or the Outside Date be delayed more than eight (8) Business Days without the prior written consent of the Company and all Lead Investors (other than any Investor whose breach is the cause of such Investor Default or Signatory Default). Notwithstanding anything to the contrary contained herein, (i) if the Investor Default or Signatory Default occurs on the date that would have been the Effective Date, then each condition set forth in Section 8.1 that was satisfied as of such date (including any condition that had been waived by Requisite Investors) shall be deemed to be satisfied at all times after the date of such Investor Default or Signatory Default, and (ii) in the event that an Alternative Financing has not been consummated prior to the expiration of the eight (8) Business Day period (or such longer period as agreed among the Company and the Investors) set forth in the preceding sentence, the Company shall be entitled to terminate this agreement pursuant to Section 10.1(d)(i). (b) Each Investor agrees that if such Investor causes an Investor Default or Signatory Default, such Investor shall, within two (2) Business Days of receiving written notice by the Company that an Alternative Financing has been consummated, repay its Allotted Portion of the Stock Right Premium to the extent received from the Company by wire transfer of immediately available funds to the non-defaulting Investors pro rata based on their Allotted Portions whether or not the Effective Date occurs. (c) Nothing in this Agreement shall be deemed to require an Investor to purchase more than its Allotted Portion of (i) the Direct Subscription Shares and (ii) the Unsubscribed Shares.

Alternative Financing. (a) Upon the occurrence of an Investor Default or a Signatory Default, the Lead Investors (other than any Lead Investor whose breach is the cause of such Investor Default or Signatory Default) shall have the right, but shall not be obligated to, within five (5) Business Days after receipt of written notice from the Company to all Lead Investors on behalf of the Investors of such Investor Default or Signatory Default to make arrangements for one or more of such Lead Investors, their Related Purchasers, Ultimate Purchasers or any combination thereof to purchase all or If any portion of the Available Investor Shares Financing becomes unavailable, or Cash Recovery Subscription Equity, as Parent becomes aware of any event or circumstance that makes any portion of the case may be, Financing unavailable on the terms and subject conditions (including any “flex” provisions in the Fee Letter) contemplated in the Commitment Letter, Parent will promptly notify the Company in writing and Parent will use its reasonable best efforts to, as promptly as practicable following the occurrence of such event, (i) arrange and obtain the Financing or such portion of the Financing from the same or alternative sources in an amount sufficient to assure the availability of the amount necessary to pay the Required Amount, together with all unrestricted cash of the Company, at the Closing (A) on terms and conditions not materially less favorable in the aggregate to Parent and Merger Sub than those contained in the Commitment Letter and the Fee Letter (provided that such reasonable best efforts shall not include requiring Parent to pay any additional fees or to increase any interest rates applicable to the conditions Financing in excess of the amount set forth in the Commitment Letter and the Fee Letter (after giving effect to the maximum amount of any “flex” provisions) on the date of this Agreement and in such amounts as may be agreed upon by such Lead Investors; providedAgreement) or, that if such Lead Investorsterms and conditions are not then available, Related Purchasers on such other terms that are acceptable to Parent in its sole discretion and Ultimate Purchasers do not(B) containing conditions to the funding of the Financing, conditions to Closing and related terms that (1) are not materially more onerous than those conditions contained in the aggregate, agree to purchase all of the Available Investor Shares or Cash Recovery Subscription Equity, as the case may be, on the terms Commitment Letter and subject to the conditions of this Agreement or the Cash Recovery Backstop Agreement, as the case may be, the Co-Investors (other than any Co-Investor whose breach is the cause of such Investor Default or Signatory Default) shall have the right, but shall not be obligated to, within two (2) Business Days after would not reasonably be expected to delay the expiration of such five Closing or make the Closing materially less likely to occur (5) Business Day period, to make arrangements for one or more of such Co-Investors, their Related Purchasers, Ultimate Purchasers or any combination thereof to purchase all or any portion of the remaining Available Investor Shares or Cash Recovery Subscription Equity, as the case may be, on the terms and subject to the conditions set forth in this Agreement and in such amounts as may be agreed upon by such Co-Investors and any Lead Investors participating in the Alternative Financing (such arrangement pursuant to which all Available Investor Shares or all of the Cash Recovery Subscription Equity, as the case may be, are purchased, an “Alternative Financing”). If an Investor Default or Signatory Default occurs, the Effective Date and the Outside Date shall each be delayed only to the extent necessary to allow for an Alternative Financing to be completed within the time frame established in this Section 3.3(a); provided, that in no event shall the Effective Date or the Outside Date be delayed more than eight (8) Business Days without the prior written consent of the Company and all Lead Investors (other than any Investor whose breach is the cause of such Investor Default or Signatory Default). Notwithstanding anything to the contrary contained herein, (i) if the Investor Default or Signatory Default occurs on the date that would have been the Effective Date, then each condition set forth in Section 8.1 that was satisfied as of such date (including any condition that had been waived by Requisite Investors) shall be deemed to be satisfied at all times after the date of such Investor Default or Signatory Default, and (ii) obtain one or more new financing commitment letters with respect to such Alternative Financing (the “New Commitment Letter”), which New Commitment Letter will replace the existing Commitment Letter in whole or in part. Parent will promptly provide a copy of any New Commitment Letter (and any fee letter in connection therewith or other agreements related thereto, subject to redaction of fee amounts, pricing caps and other economic terms so long as no redaction covers terms that would adversely affect the amount, timing, conditionality, availability or termination of the Financing) to the Company. In the event that an Alternative Financing has not been consummated prior any New Commitment Letter is obtained, (A) any reference in this Agreement to the expiration of “Commitment Letter” will be deemed to include the eight (8) Business Day period (or such longer period as agreed among the Company and the Investors) set forth in the preceding sentence, the Company shall be entitled to terminate this agreement pursuant to Section 10.1(d)(i). (b) Each Investor agrees that if such Investor causes an Investor Default or Signatory Default, such Investor shall, within two (2) Business Days of receiving written notice by the Company that an Alternative Financing has been consummated, repay its Allotted Portion of the Stock Right Premium Commitment Letter to the extent received from not superseded by a New Commitment Letter at the Company by wire transfer of immediately available funds time in question and any New Commitment Letter to the non-defaulting Investors pro rata based on their Allotted Portions whether or not the Effective Date occurs. extent then in effect and (cB) Nothing any reference in this Agreement shall to the “Financing” will be deemed to require an Investor mean the debt financing contemplated by the Commitment Letter as modified pursuant to purchase more than its Allotted Portion of (i) the Direct Subscription Shares and (ii) the Unsubscribed Sharesforegoing.

Alternative Financing. Parent and Merger Subsidiary will give the Company prompt notice (a) Upon of any actual or alleged breach or default by any party to any agreement in respect of the occurrence Debt Financing Commitment, (b) of an Investor Default the receipt of any written notice or a Signatory Defaultother written communication from any source of Debt Financing with respect to any actual or alleged breach, default, termination or repudiation by any party to any agreement in respect of the Lead Investors Debt Financing Commitment, or (other than any Lead Investor whose breach is the cause of such Investor Default or Signatory Defaultc) shall have the right, but shall if Parent and Merger Subsidiary determine in good faith that they will not be obligated able to satisfy any of the obligations to, within five (5) Business Days after receipt of written notice from the Company or otherwise be able to all Lead Investors on behalf of the Investors of such Investor Default or Signatory Default to make arrangements for one or more of such Lead Investorsobtain, their Related Purchasers, Ultimate Purchasers or any combination thereof to purchase all some or any portion of the Available Investor Shares or Cash Recovery Subscription Equity, as the case may be, on the terms and subject Debt Financing prior to the conditions set forth in this Agreement and in such amounts as may be agreed upon by such Lead Investors; provided, that if such Lead Investors, Related Purchasers and Ultimate Purchasers do not, in the aggregate, agree to purchase all of the Available Investor Shares or Cash Recovery Subscription Equity, as the case may be, on the terms and subject to the conditions of this Agreement or the Cash Recovery Backstop Agreement, as the case may be, the Co-Investors (other than any Co-Investor whose breach is the cause of such Investor Default or Signatory Default) shall have the right, but shall not be obligated to, within two (2) Business Days after the expiration of such five (5) Business Day period, to make arrangements for one or more of such Co-Investors, their Related Purchasers, Ultimate Purchasers or any combination thereof to purchase all or Outside Date. If any portion of the remaining Available Investor Shares Debt Financing becomes unavailable, and such portion is required to fund the aggregate Merger Consideration, the Option Consideration, amounts necessary to repay all outstanding amounts under the Credit Agreement and all fees, expenses and other amounts related to or Cash Recovery Subscription Equityarising out of the transactions contemplated by this Agreement, as the case may beParent and Merger Subsidiary will use their reasonable best efforts to promptly arrange and obtain in replacement thereof alternative financing from alternative sources in an amount sufficient, on the terms and subject when added to the conditions set forth portion of the Financing that is available together with any cash or cash equivalents held by the Company as of the Effective Time, to pay in this cash the aggregate Merger Consideration, the Option Consideration, amounts necessary to repay all outstanding amounts under the Credit Agreement and in such all fees, expenses and other amounts as may be agreed upon by such Co-Investors and any Lead Investors participating in the Alternative Financing (such arrangement pursuant relating to which all Available Investor Shares or all arising out of the Cash Recovery Subscription Equity, as the case may be, are purchased, an “Alternative Financing”)transactions contemplated by this Agreement. If an Investor Default or Signatory Default occurs, the Effective Date and the Outside Date shall each be delayed only Notwithstanding anything herein to the extent necessary to allow for an Alternative Financing to be completed within the time frame established in this Section 3.3(a); providedcontrary, that in no event shall will the Effective Date reasonable best efforts of Parent be deemed or the Outside Date construed to require Parent to, and Parent will not be delayed more than eight (8) Business Days without the prior written consent of the Company and all Lead Investors (other than any Investor whose breach is the cause of such Investor Default or Signatory Default). Notwithstanding anything to the contrary contained hereinrequired to, (i) if pay any fees in excess of those contemplated by the Investor Default Debt Financing Commitment or Signatory Default occurs on the date redacted fee letter accompanying the Debt Financing Commitment, (ii) agree to any term that would have been is outside of, or less favorable than, any applicable economic provisions of the Effective DateDebt Financing Commitment or any related fee letter, then each condition set forth or (iii) amend or waive any of the terms or conditions hereof or under any of the Debt Financing Commitments. Any reference in Section 8.1 that was satisfied as of this Agreement to (A) the “Debt Financing” will include any such date alternative debt financing, (including B) the “Financing” will include any condition that had been waived by Requisite Investorssuch alternative financing, (C) shall be deemed to be satisfied at all times after the date of “Debt Financing Commitment” will include any such Investor Default or Signatory Defaultalternative debt commitment, (D) the “Financing Commitments” will include any such alternative financing commitments, and (iiE) the “Debt Financing Agreement” will include the definitive agreement(s) with respect to any such alternative debt financing. Parent will keep the Company informed on a reasonably current basis in reasonable detail of the event that an Alternative Financing has not been consummated prior status of its efforts to arrange any alternative financing and provide copies of all documents provided to the expiration of the eight (8) Business Day period (lenders or otherwise related to such longer period as agreed among the Company and the Investors) set forth in the preceding sentence, the Company shall be entitled to terminate this agreement pursuant to Section 10.1(d)(i). (b) Each Investor agrees that if such Investor causes an Investor Default or Signatory Default, such Investor shall, within two (2) Business Days of receiving written notice by the Company that an Alternative Financing has been consummated, repay its Allotted Portion of the Stock Right Premium alternative financing to the extent received from the Company by wire transfer of immediately available funds to the non-defaulting Investors pro rata based on their Allotted Portions whether or not the Effective Date occursCompany. (c) Nothing in this Agreement shall be deemed to require an Investor to purchase more than its Allotted Portion of (i) the Direct Subscription Shares and (ii) the Unsubscribed Shares.